EXHIBIT 4-4
AGENCY AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on 16th June, 2000 BETWEEN:
(1) CIBA SPECIALTY CHEMICALS CORPORATION of 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxx 00000-0000, Xxxxxx Xxxxxx ("CIBA US");
(2) CIBA SPECIALTY CHEMICALS PLC of Xxxxxx 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 HOLDING INC. of Xxxxxxxxxxxxxx 000, XX-0000 Xxxxx,
Xxxxxxxxxxx (the "Guarantor");
(5) THE CHASE MANHATTAN BANK of Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0
0XX (the "Agent", which expression shall include any successor agent
appointed in accordance with clause 21); and
(6) CHASE MANHATTAN BANK LUXEMBOURG S.A. of 0 Xxx Xxxxxxx, X-0000 Xxxxxxxxxx
(xxxxxxxx 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 (each an "Issuer" and together, the
"Issuers") and the Guarantor have entered into an amended and restated
program agreement dated 16th June, 2000 (the "Program Agreement") with the
Dealers named therein pursuant to which the Issuer may issue Euro Medium
Term Notes (the "Notes") in an aggregate nominal amount outstanding at any
time of up to U.S.$2,000,000,000 (or its equivalent in other currencies).
The Program Agreement amends and restates the amended and restated program
agreement entered into by CIBA US, CIBA UK, CIBA Germany, Ciba Specialty
Chemicals Investment Ltd. and the Guarantor dated 9th July, 1999 with the
Dealers named therein.
(B) CIBA US, CIBA UK, CIBA Germany, Ciba Specialty Chemicals Investment Ltd.,
the Guarantor, the Agent and the Paying Agents (the "Principal Parties")
entered into an amended and restated Agency Agreement (the "Principal
Agency Agreement") dated 9th July, 1999 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 Stock
Exchange 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 Xxxxxx Guaranty Trust Company of New York, Brussels
office, 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 " mean the 1991 ISDA Definitions (as supplemented by the
1998 Supplement and the 1998 ISDA Euro 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, Austrian Schillings,
Canadian dollars, Czech koruna, Danish kroner, Deutsche Marks, Dutch
guilders, euro, Finnish markkas, Hong Kong dollars, Irish pounds, Italian
lire, Japanese Yen, Luxembourg francs, New Zealand dollars, Norwegian
kroner, Portuguese escudos, 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
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applicable Pricing Supplement) and includes any replacements for a Note
issued pursuant to Condition 10 and, where applicable, the Receipts
relating thereto;
"Noteholders " means the several persons who are for the time being holders
of the Notes save that, in respect of the Notes of any Series, for so long
as such Notes or any part thereof are represented by a Global Note held on
behalf of Euroclear and/or of Clearstream, Luxembourg, each person (other
than Euroclear or Clearstream, Luxembourg) who is for the time being shown
in the records of Euroclear or of Clearstream, Luxembourg as the holder of
a particular nominal amount of the Notes of such Series (in which regard
any certificate or other document issued by Euroclear or Clearstream,
Luxembourg as to the nominal amount of such Notes standing to the account
of any person shall be conclusive and binding for all purposes save in the
case of manifest error) shall be treated by the Issuer, the Guarantor, the
Agent and any other Paying Agent as the holder of such nominal amount of
such Notes for all purposes other than with respect to the payment of
principal or interest on such Notes, for which purpose the bearer of the
relevant Global Note shall be treated by the Issuer, the Guarantor, the
Agent and any other Paying Agent as the holder of such nominal amount of
such Notes in accordance with and subject to the terms of the relevant
Global Note and this agreement and the expressions "Noteholder", "holder of
Notes" and related expressions shall be construed accordingly;
"outstanding" means, in relation to the Notes, all the Notes issued other
than (a) those which have been redeemed in full in accordance with the
Conditions, (b) those in respect of which 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;
"Subsidiary" means any entity which is a subsidiary within the meaning of
Section 736 of the Companies Xxx 0000;
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"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, 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
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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.
(10) Any references herein to Eurocle ar 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) arranging on behalf of any Issuer and/or the Guarantor for notices to
be communicated to the Noteholders;
(h) 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;
(i) subject to the Procedures Memorandum, submitting to the relevant Stock
Exchange such number of copies of each Pricing Supplement which
relates to Notes which are to be listed as it may reasonably require;
(j) acting as Calculation Agent in respect of Notes where named as such in
the relevant Pricing Supplement; and
(k) 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. 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
of 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 for Notes issued pursuant to the UK
Banking Xxx 0000 (Exempt Transactions) Regulations 1997 and a master
Temporary Global Note for other Notes, each 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
(b) a master Permanent Global Note for Notes issued pursuant to the UK
Banking Xxx 0000 (Exempt Transactions) Regulations 1997 and a master
Permanent Global Note for other Notes, each duly executed by a person
or persons authorised to execute the
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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 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.
(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
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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.
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.
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(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.
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
13
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 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
14
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) 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,
15
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 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.
16
(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
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.
17
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
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.
(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 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, 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 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 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
18
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,
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.
19
(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 not issue any replacement Note, Receipt, Coupon
or Talon unless and until the claimant therefor shall have:
(a) paid such reasonable costs and expenses as may be incurred in
connection therewith;
(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
20
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.
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.
(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. 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
21
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 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.
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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.
(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
23
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, 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 the relevant Stock Exchange; and
(b) there will at all times be a Paying Agent (which may be the Agent)
with a specified office in a city in continental Europe; and
(c) there will at all times be an Agent.
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
24
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.
(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.
25
(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, 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.
26
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:
Xxxxxxxxxxxxxx 000
XX-0000 Xxxxx
Telephone: 00 00 000 0000
Telefax: 41 61 636 6828
Attention: Head of Capital Markets
26. TAXES AND STAMP DUTIES
The Issuers and the Guarantor jointly and severally agree to pay any and
all stamp and other documentary taxes or duties which may be payable in
Germany, the United States of America, the United Kingdom, the Grand Duchy
of Luxembourg, Belgium or Switzerland in connection with the execution,
delivery, performance and enforcement of this Agreement, the Deed of
Covenant or the Deed of Guarantee.
27. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being made
or registered against any Issuers and/or the Guarantor or in the
liquidation, insolvency or analogous process of any Issuer and/or the
Guarantor or for any other reason, any payment under or in connection with
this Agreement is made or falls to be satisfied in a currency (the "other
currency") other than that in which the relevant payment is expressed to be
due (the "required currency") under this Agreement, then, to the extent
that the payment (when converted into the required currency at the rate of
exchange on the date of payment or, if it is not practicable for the Agent
or the relevant other Paying Agent to purchase the required currency with
the other currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so or, in the case of a
liquidation, insolvency or analogous process at the rate of exchange on the
latest date permitted by applicable law for
27
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.
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
(2) This Agreement does not create any right under the Contracts (Rights of
Third Parties) Xxx 0000 which is enforceable by any person who is not a
party to this Agreement.
(3) 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
28
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 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.
31. 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]
as Issuer
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
EURO MEDIUM TERM NOTE PROGRAM
-------------------------------------
CALCULATION AGENCY AGREEMENT
-------------------------------------
XXXXX & XXXXX
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 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxx 00000-0000, United States/CIBA SPECIALTY CHEMICALS PLC of Xxxxxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxxx XX00 2NX/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH of Chemiestrasse D-68623 Lampertheim, Germany] (the
"Issuer");
(2) CIBA SPECIALTY CHEMICALS HOLDING INC. of Xxxxxxxxxxxxx 000, XX-0000 Xxxxx,
Xxxxxxxxxxx (the "Guarantor"); and
(3) [ ] of [ ] (the "Calculation Agent", which expression shall include its
successor or
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 16th June, 2000 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 16th June, 2000
and entered into between the Issuer, the Guarantor, such other
subsidiaries, The Chase Manhattan Bank as Agent (the "Agent" which
expression shall include its successor or successors for the time being
under the Agency Agreement) and the other parties named therein.
NOW IT IS HEREBY AGREED that:
1. APPOINTMENT OF THE CALCULATION AGENT
The Issuer and the Guarantor hereby appoint [ ] as Calculation Agent in
respect of each Series of Notes described in the Schedule hereto (the
"Relevant Notes") for the purposes set out in clause 2 below, all upon the
provisions hereinafter set out. The agreement of the parties hereto that
this Agreement is to apply to each Series of Relevant Notes shall be
evidenced by the manuscript annotation and signature in counterpart of the
Schedule hereto.
2. DUTIES OF CALCULATION AGENT
The Calculation Agent shall in relation to each Series of Relevant Notes
perform all the functions and duties imposed on the Calculation Agent by
the terms and conditions of the Relevant Notes (the "Conditions ")
including endorsing the Schedule hereto appropriately in relation to each
Series of Relevant Notes.
31
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 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
32
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.
(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
33
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 clause and, if so delivered, shall be deemed to have
been delivered at time of receipt; or
34
(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. 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 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.
35
(3) This Agreement does not create any right under the Contracts (Rights of
Third Parties) Xxx 0000 which is enforceable by any person who is not a
party to this Agreement.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written..36
36
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
Series number Issue Date Maturity Date Title and Annotation by
Nominal Calculation
Amount Agent/Issuer
37
Issuer
[CIBA SPECIALTY CHEMICALS CORPORATION
000 Xxxxx Xxxxxx Xxxx
XX Xxx 0000
Xxxxxxxxx, Xxx Xxxx
00000-0000
Telephone: 000 000 000 0000
Telefax: 001 914 785 2650
Attention: Treasurer]/
[CIBA SPECIALTY CHEMICALS PLC
Xxxxxx Xxxx
Xxxxxxxxxxxx
Xxxxxxxx
XX00 0XX
Telephone: 00 0 000 000 000
Telefax: 44 1 625 888 380
Attention: Treasurer]/
[CIBA SPEZIALITATENCHEMIE HOLDING XXXXXXXXXXX XXXX
Xxxxxxxxxxxxx
X-00000 Xxxxxxxxxxx
Xxxxxxx
Telephone: 00 00 0000 000 000
Telefax: 00 49 6206 152 816
Attention: Treasurer]
By:
Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
Xxxxxxxxxxxxxx 000
XX-0000 Xxxxx
Xxxxxxxxxxx
Telephone: 00 00 00 000 0000
Telefax No: 00 41 61 636 6828
Attention: Head of Capital Markets
By: By:
38
Calculation Agent
[
]
Telephone: [ ]
Telefax No: [ ]
Attention: [ ]
Without prejudice to the foregoing execution of the Agreement by the parties
hereto, [Name of Luxembourg incorporated Calculation Agent] hereby expressly and
specifically confirms its agreement with the provisions of Clause 9(2) hereof
for the purposes of Article 1 of the Protocol annexed to the Convention on
jurisdiction and the enforcement of judgments in civil and commercial matters
signed at Brussels on 27th September, 1968.
[Name of Luxembourg incorporated Calculation Agent]
By:
39
AGENT
The Chase Manhattan Bank
Trinity Tower
9 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
PAYING AGENT
Chase Manhattan Bank Luxembourg S.A.
0 Xxx Xxxxxxx
X-0000 Xxxxxxxxxx
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.
40
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
[THIS NOTE CONSTITUTES [[COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY]3 ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE
BANKING XXX 0000. THE ISSUER OF THIS NOTE IS [CIBA SPECIALTY CHEMICALS
CORPORATION/CIBA SPECIALTY CHEMICALS PLC/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH]4 , WHICH IS NOT AN AUTHORISED INSTITUTION OR A EUROPEAN
AUTHORISED INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000
(EXEMPT TRANSACTIONS) REGULATIONS 1997). REPAYMENT OF THE PRINCIPAL AND PAYMENT
OF ANY INTEREST OR PREMIUM IN CONNECTION WITH THIS NOTE HAS BEEN GUARANTEED BY
CIBA SPECIALTY CHEMICALS
________________________
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.
3 Include "commercial paper" if maturity of Notes is less than one year.
Include "shorter" if maturity of Notes is one year or more, but less than 3
years. Include "longer" if maturity of Notes is 3 years or more.
4 Delete as applicable.
41
HOLDING INC. WHICH IS NEITHER AN AUTHORISED INSTITUTION NOR A EUROPEAN
AUTHORISED INSTITUTION.]5
[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)]
unconditionally and irrevocably guaranteed by
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] (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 16th June, 2000
and made between, inter alia, the Issuer, the Guarantor, The Chase Manhattan
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
________________________
5 Delete except (a) where the Notes are denominated in Sterling or (b) the
net proceeds of the issue of the Notes are accepted in the United Kingdom.
42
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 Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0 0XX 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 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.
43
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 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 16th June, 2000 in respect of the Euro
Medium Term Notes issued under the Program Agreement pursuant to which this
Global Note is issued).
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]
By: ....................
Authorised Signatory
44
Authenticated without recourse,
warranty or liability by
THE CHASE MANHATTAN BANK
By: ....................
Authorised Signatory
45
Schedule One to the Temporary Global Note
PART I
INTEREST PAYMENTS
Date made Total amount of Amount of interest Confirmation of payment
interest payable interest paid on behalf of the Issuer
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
46
Date made Total amount of Amount of interest Confirmation of payment
interest payable interest paid on behalf of the Issuer
_________ _________________ ____________________ ________________________
_________ _________________ ____________________ ________________________
47
PART II
PAYMENT OF INSTALMENT AMOUNTS
Date Total amount Amount of Remaining nominal Confirmation of
made Instalment Instalment amount of this payment on
Amounts Amounts paid Global Note behalf of the
payable following such Issuer
payment*
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________________________
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
48
49
PART III
REDEMPTIONS
Date Total amount Amount of Remaining nominal Confirmation of
made of principal principal paid amount of this redemption on
payable Global Note behalf of the
following such Issuer
redemption*
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________ _____________ _____________ _________________ _________________
________________________
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
50
PART IV
PURCHASES AND CANCELLATIONS
Date Part of nominal amount Remaining nominal amount Confirmation of
made of this Global Note of this Global Note purchase and
purchased and following such purchase cancellation on
cancelled and cancellation* behalf of the Issuer
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________________________
* See most recent entry in Part II, III or IV of Schedule One or Schedule Two
in order to determine this amount.
51
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 Notation made on
Global Note exchanged amount of this Global behalf of the
for Definitive Notes or Note following such Issuer
a Permanent Global Note exchange*
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________ ______________________ ________________________ ____________________
________________________
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
52
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]
[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.
53
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,
[Xxxxxx Guaranty Trust
Company of New York,
Brussels Office,
as operator of the Euroclear
System]
or
Clearstream, Luxembourg
By:
------------------------------------------------------------------------
* To be dated no earlier than the Exchange Date.
54
CERTIFICATE "A"
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[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.
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.
55
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.
56
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
[THIS NOTE CONSTITUTES [[COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY]3 ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF
THE BANKING XXX 0000. THE ISSUER OF THIS NOTE IS [CIBA SPECIALTY CHEMICALS
CORPORATION/CIBA SPECIALTY CHEMICALS PLC/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH]4 , WHICH IS NOT AN AUTHORISED INSTITUTION OR A EUROPEAN
AUTHORISED INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000
(EXEMPT TRANSACTIONS) REGULATIONS 1997). REPAYMENT OF THE PRINCIPAL AND
PAYMENT OF ANY INTEREST OR PREMIUM IN CONNECTION WITH THIS NOTE HAS BEEN
GUARANTEED BY CIBA SPECIALTY CHEMICALS HOLDING INC. WHICH IS NEITHER AN
AUTHORISED INSTITUTION NOR A EUROPEAN AUTHORISED INSTITUTION]5.
[CIBA SPECIALTY CHEMICALS CORPORATION
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.
3 Include "commercial paper" if maturity of Notes is less than one year.
Include "shorter" if maturity of Notes is one year or more, but less than
3 years. Include "longer" if maturity of Notes is 3 years or more.
4 Delete as applicable.
5 Delete except where (a) the Notes are denominated in Sterling or (b) the
net proceeds of the issue of the Notes are accepted in the United
Kingdom.
57
(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)]
unconditionally and irrevocably guaranteed by
CIBA SPECIALTY CHEMICALS HOLDING INC.
(a company incorporated with limited liability in Switzerland)
PERMANENT GLOBAL NOTE
This Global Note is a Permanent Global Note in respect of a duly authorised
issue of Euro Medium Term Notes (the "Notes") of [Ciba Specialty Chemicals
Corporation/Ciba Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding
Deutschland GmbH] (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 16th June, 2000 and made between, inter alia, the Issuer, the
Guarantor, The Chase Manhattan 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 Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx,
Xxxxxx X0 0XX 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.
58
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.
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.
59
(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.
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 16th
June, 2000 in respect of the Euro Medium Term Notes issued under the
Program Agreement pursuant to which this Global Note is issued).
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.
60
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]
By: .........................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
THE CHASE MANHATTAN BANK
By: ..........................
Authorised Signatory.
61
Schedule One to the Permanent Global Note
PART I
INTEREST PAYMENTS
Date Total amount of Amount of interest paid Confirmation of payment on
made interest payable behalf of the Issuer
_____ _________________ ________________________ ___________________________
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62
PART II
PAYMENT OF INSTALMENT AMOUNTS
Date Total amount of Amount of Instalment Remaining nominal Confirmation of
made Instalment Amounts paid amount of this Global payment on behalf
Amounts payable Note following such of the Issuer
payment*
_____ ________________ ____________________ _____________________ __________________
_____ ________________ ____________________ _____________________ __________________
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---------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
63
PART III
REDEMPTIONS
Date Total amount of Amount of principal Remaining nominal Confirmation of
made principal payable paid amount of this redemption on
Global Note following behalf of the Issuer
such redemption*
_____ _________________ ___________________ _____________________ ____________________
_____ _________________ ___________________ _____________________ ____________________
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---------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
64
65
PART IV
PURCHASES AND CANCELLATIONS
Date made Part of nominal amount Remaining nominal amount Confirmation of
of this Global Note of this Global Note purchase and
purchased and cancelled following such purchase cancellation on
and cancellation* behalf of the Issuer
_________ _______________________ ________________________ ____________________
_________ _______________________ ________________________ ____________________
_________ _______________________ ________________________ ____________________
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---------------------
* See most recent entry in Part II, III or IV of Schedule One or Schedule
Two in order to determine this amount.
66
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 Nominal amount of Nominal amount of this Global Notation made on
made Temporary Global Note Note following exchange* behalf of the
exchanged for this Issuer
Global Note
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
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____ _____________________ _____________________________ ________________
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____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
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____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
____ _____________________ _____________________________ ________________
------------------
* See most recent entry in Part II, III or IV of Schedule One or in this
Schedule Two in order to determine this amount.
67
68
PART III
FORM OF DEFINITIVE NOTE
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
[THIS NOTE CONSTITUTES [[COMMERCIAL PAPER]/[A SHORTER/LONGER] TERM DEBT
SECURITY]3 ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF
THE BANKING XXX 0000. THE ISSUER OF THIS NOTE IS [CIBA SPECIALTY CHEMICALS
CORPORATION/CIBA SPECIALTY CHEMICALS PLC/CIBA SPEZIALITATENCHEMIE HOLDING
DEUTSCHLAND GMBH]4 , WHICH IS NOT AN AUTHORISED INSTITUTION OR A EUROPEAN
AUTHORISED INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000
(EXEMPT TRANSACTIONS) REGULATIONS 1997). REPAYMENT OF THE PRINCIPAL AND
PAYMENT OF ANY INTEREST OR PREMIUM IN CONNECTION WITH THIS NOTE HAS BEEN
GUARANTEED BY CIBA SPECIALTY CHEMICALS HOLDING INC. WHICH IS NEITHER AN
AUTHORISED INSTITUTION NOR A EUROPEAN AUTHORISED INSTITUTION]5 .
[CIBA SPECIALTY CHEMICALS CORPORATION
(a company incorporated under the laws of the State of Delaware, U.S.A.)/
---------------------
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.
3 Include "commercial paper" if maturity of Notes is less than one year.
Include "shorter" if maturity of Notes is one year or more, but less
than 3 years. Include "longer" if maturity of Notes is 3 years or more.
4 delete as applicable.
5 Delete except where the Notes are denominated in Sterling or (b) the net
proceeds of the issue of the Notes are accepted in the United Kingdom.
69
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)]
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.] (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 16th
June, 2000 and made between, inter alia, the Issuer, the Guarantor, The
Chase Manhattan 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.
70
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]
By: .............................
Authorised Signatory
Authenticated without recourse,
warranty or liability by
THE CHASE MANHATTAN BANK
By: ..........................
Authorised Signatory
71
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]
72
PART IV
FORM OF COUPON
(Face of Coupon)
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[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
73
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 and all other
Coupons.
74
(Reverse of Coupon)
AGENT
The Chase Manhattan Bank
Trinity Tower
9 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
PAYING AGENT
Chase Manhattan Bank Luxembourg S.A.
0 Xxx Xxxxxxx
X-0000 Xxxxxxxxxx
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.
75
(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]
[Specified Currency and Nominal Amount of Tranche]
EURO MEDIUM TERM NOTES DUE [Year of Maturity]
Series No. [ ]
Receipt for the sum of [ ] being the instalment of principal payable in
accordance with the Terms and Conditions endorsed on the Note to which this
Receipt appertains (the "Conditions ") on [ ].
This Receipt is issued subject to and in accordance with the Conditions
which shall be binding upon the holder of this Receipt (whether or not it
is for the time being attached to such Note) and is payable at
---------------------
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 and on all
other Receipts.
76
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]
By:...........................
Authorised Signatory
77
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]
[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.
78
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]
By: ...........................
Authorised Signatory
79
(Reverse of Receipt and Talon)
AGENT
The Chase Manhattan Bank
Trinity Tower
9 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
PAYING AGENT
Chase Manhattan Bank Luxembourg S.A.
0 Xxx Xxxxxxx
X-0000 Xxxxxxxxxx
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.
80
SCHEDULE 3
FORM OF DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made on 16th June, 2000 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 (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 16th
June, 2000 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 9th July, 1999 (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 16th
June, 2000 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 9th July, 1999, and does not
affect any Notes issued pursuant to the Original Program Agreement prior
to the date hereof.
NOW THIS DEED WITNESSES as follows:
1. Guarantee: The Guarantor irrevocably and unconditionally undertakes to
secure by way of deed poll to each Holder the due and punctual payment as
stipulated in an Issuer's Note or Coupon or under its Deed of Covenant, as
the case may be. The Guarantor therefore undertakes to pay on first demand
of such a Holder, irrespective of the validity and the legal effects of
the above mentioned relationship in respect of a Note or Coupon or Deed
of Covenant and waiving all rights of objection and defence arising
therefrom any amount not paid by the relevant Issuer (including any
premium or any other amounts of whatever nature.
81
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.
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
82
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.
7. Power to execute: The Guarantor hereby warrants, represents and covenants
with each Holder that it has all corporate power, and has taken all
necessary corporate or other steps, to enable it to execute, deliver and
perform this Guarantee, and that this Guarantee constitutes a legal,
valid and binding obligation of the Guarantor, enforceable in accordance
with its terms subject to applicable bankruptcy, reorganisation,
insolvency, fraudulent transfer, moratorium and other similar laws
affecting creditor's rights generally from time to time in effect, and to
general principles of equity, regardless of whether considered in a
proceeding in law or at equity.
8. Deposit of Guarantee: This Guarantee shall take effect as a Deed Poll for
the benefit of the Holders from time to time and for the time being. This
Guarantee shall be deposited with and held by The Chase Manhattan Bank for
the benefit of the Holders until all the obligations of the Guarantor
hereunder have been discharged in full.
9. Production of Guarantee: The Guarantor hereby acknowledges the right of
every Holder to the production of, and the right of every Holder to obtain
(upon payment of a reasonable charge) a copy of, this Guarantee, and
further acknowledges and covenants that the obligations binding upon it
contained herein are owed to, and shall be for the account of, each and
every Holder, and that each Holder shall be entitled severally to enforce
the said obligations against the Guarantor.
10. Subrogation: Until all amounts which may be payable under the Notes, the
Coupons and/or the Deed of Covenant have been irrevocably paid in full,
the Guarantor shall not exercise any rights of subrogation in respect of
any rights of any Holder or claim in competition with the Holders against
the relevant Issuer.
83
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.
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 its attorneys )
and )
)
in the presence of: )
Witness's
Signature: ..............
Name: ..............
Address: ..............
..............
Dated 16th June, 2000
84
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
85
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.
86
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 clause 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;
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
87
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 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.
88
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.
15. The proxies named in any block voting instruction need not be Noteholders.
89
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 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
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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.
91
SCHEDULE 5
FORM OF PUT NOTICE
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[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: ...................
92
Duly authorised on behalf of
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[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.
93
SCHEDULE 6
Dated 16th June, 2000
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
as Issuers
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
----------------------------------
OPERATING & ADMINISTRATIVE
PROCEDURES MEMORANDUM
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
(Amended and Restated)
-----------------------------------
XXXXX & XXXXX
London
94
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 16th June, 2000
(the "Offering Circular" as supplemented), or, as the case may be, the
amended and restated Program Agreement dated 16th June, 2000 (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
such number of copies of the Pricing Supplement as it may reasonably
require;
(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 determining the end of the Distribution
Compliance Period in respect of any Tranche
95
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.
96
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
than Issue terms with one or more of the Dealers for
Date minus 5 the issue and purchase of Notes (whether
pursuant to an unsolicited bid from a Dealer
or pursuant to an enquiry by the Issuer).
The Dealer instructs the Agent to obtain a
common code and ISIN from Euroclear or
Clearstream, Luxembourg. In the case of the
first Tranche of Notes of a Series, the
Agent telephones Euroclear or Clearstream,
Luxembourg with a request for a common code
and ISIN for such Series and in the case of
a subsequent Tranche of Notes of that Series
the Agent telephones Euroclear or
Clearstream, Luxembourg with a request for
a temporary common code and ISIN for such
Tranche. Each common code and ISIN is
notified by the Agent to the Issuer and each
Dealer which has reached agreement with the
Issuer.
3.00 p.m. If a Dealer has reached agreement with the
Issuer and the Guarantor by telephone, such
Dealer confirms the terms of the agreement
to the Issuer and the Guarantor by fax
(substantially in the form set out in
Annexe B) attaching a copy of the Pricing
Supplement (substantially in the form set
out in Annexe C). The Dealer sends a copy
of that fax to the Agent for information.
5.00 p.m. The Issuer and the Guarantor confirm their
agreement to the terms on which the issue of
Notes is to be made (including the form of
the Pricing Supplement) by each signing and
returning a copy of the Pricing Supplement
to the relevant Dealer. The Issuer also
confirms its instructions to the Agent
(including, in the case of Floating Rate
Notes, for the purposes of rate fixing) to
carry out the duties to be carried out by
the Agent under these Settlement Procedures
and the Agency Agreement including
preparing, authenticating and
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Day Latest Action
London time
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 In the case of Notes which are to be listed
than Issue on a Stock Exchange, the Agent also
Date minus 3 notifies, or the notification to, the
the relevant Stock Exchange by fax or by
hand of the details of the Notes to be
issued by sending the Pricing Supplement to
the relevant Stock Exchange.
Issue Date The relevant Dealer instructs Euroclear
minus 2 and/or Clearstream, Luxembourg to debit its
account and pay the purchase price, against
delivery of the Notes, to the Agent's
account with Euroclear and/or Clearstream,
Luxembourg on the Issue Date and the Agent
receives details of such instructions
through the records of Euroclear and/or
Clearstream, Luxembourg.
Issue Date 3.00 p.m. In the case of Floating Rate Notes, the
minus 2 Agent notifies Euroclear, Clearstream,
Luxembourg, the Issuer, the Guarantor
(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 3.00 p.m. The Agent prepares and authenticates a
minus 1 Temporary Global Note for each Tranche of
Notes which is to be purchased and, where
required as specified above, a Permanent
Global Note in respect of the relevant
Series. The conditions precedent in the
Program agreement are satisfied and/or
waived. The Temporary Global Note and any
such Permanent Global Note are then
delivered by the Agent to a common
depositary for Euroclear and Clearstream,
Luxembourg and instructions are given by the
Agent to
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Day Latest Action
London time
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 The Agent notifies the Issuer and Guarantor
subsequent forthwith in the event that a Dealer does
to the Issue not pay the purchase price due from it in
Date respect of a Note. 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
restricted period with respect to the
relevant Tranche of Notes.
99
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 Action
London time
No later The Issuer and the Guarantor may, subject to
than Issue the execution of the Subscription Agreement
Date minus 10 referred to below, agree terms with a Dealer
(or such other (which expression in this Part 2 includes
number of days any entity to be appointed as a dealer
agreed between under the Subscription Agreement referred to
the Issuer, below) (the "Lead Manager") for the issue
the Guarantor, and purchase of Notes to be subscribed
the Lead pursuant to a Subscription Agreement
Manager and (whether pursuant to an unsolicited bid
the Agent) 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.
100
Day Latest Action
London time
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
Issue Date Stock Exchange, the Agent notifies or
minus 3 procure the notification to, the relevant
Stock Exchange by fax or by hand of the
details of the Notes to be issued by sending
the Pricing Supplement to the relevant Stock
Exchange.
101
Day Latest Action
London time
No later than The Lead Manager instructs Euroclear and/or
Issue Date Clearstream, Luxembourg to debit its
minus 2 account and pay the purchase price, against
delivery of the Notes as instructed by the
Lead Manager to the account specified by the
Issuer.
Issue Date 3.00 p.m. In the case of Floating Rate Notes, the
minus 2 Agent notifies Euroclear, Clearstream,
Luxembourg, the Issuer, the Guarantor, the
relevant Stock Exchange (if applicable) and
the Lead Manager by telex or fax of the
Rate of Interest for the first Interest
Period (if already determined). Where the
Rate of Interest has not yet been
determined, this will be notified in
accordance with this paragraph as soon as it
has been determined.
Issue Date agreed time The Agent prepares and authenticates a
minus 1 (in Temporary Global Note for each Tranche of
the case of Notes which is to be purchased, and where
pre-closed required as specified above, a Permanent
issues) or Global Note in respect of the relevant
Issue Date Series. The conditions precedent in the
(in any other Subscription Agreement and the Program
case) (the Agreement are satisfied and/or waived.
"Payment The Temporary Global Note and any such
Instruction Permanent Global Note are then delivered
Date") 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.
Issue Date Euroclear and/or Clearstream, Luxembourg
debit and credit accounts in accordance with
instructions received by them.
102
Day Latest Action
London time
On or
subsequent to Each other Manager (if any) promptly
the Issue Date notifies the Lead Manager when the
distribution of the Notes purchased by it
has been completed. The Lead Manager
promptly notifies the Agent upon completion
of the distribution of the Notes of the
relevant Tranche. The Agent promptly
notifies the Issuer, the Guarantor, the
Lead Manager, Euroclear and Clearstream,
Luxembourg of the date of the end of the
restricted period with respect to the
relevant Tranche of Notes.
103
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 1991 ISDA Definitions (as supplemented by the
1998 Supplement and by the 1998 ISDA Euro 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.
104
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]
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
c.c. The Chase Manhattan Bank
[CIBA SPECIALTY CHEMICALS CORPORATION/
CIBA SPECIALTY CHEMICALS PLC/
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[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
105
ANNEXE C
FORM OF PRICING SUPPLEMENT
[Date]
[Ciba Specialty Chemicals Corporation/
Ciba Specialty Chemicals PLC/
Ciba Spezialitatenchemie Holding Deutschland GmbH]
Issue of [Aggregate Nominal Amount of Tranche] [Title of Notes]
Guaranteed by Ciba Specialty Chemicals Holding Inc.
under the U.S.$2,000,000,000
Euro Medium Term Note Program
[The Notes constitute [commercial paper/shorter term debt securities/longer
term debt securities]* issued in accordance with regulations made under
section 4 of the Banking Xxx 0000. The Issuer of the Notes is not an
authorised institution or a European authorised institution (as such terms
are defined in the Banking Xxx 0000 (Exempt Transactions) Regulations
1997). Repayment of the principal and payment of any interest or premium in
connection with the Notes has been guaranteed by Ciba Specialty Chemicals
Holding Inc., which is not an authorised institution or a European
authorised institution].**
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.]
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)]
-------------------
* Include "commercial paper" if Notes must be redeemed before their first
anniversary. Include "shorter term debt securities" if Notes may not be
redeemed before their first anniversary but must be redeemed before their
third anniversary. Include "longer term debt securities" if Notes may not
be redeemed before their third anniversary.
** Unless otherwise permitted, text to be included for all Notes (including
Notes denominated in Sterling) in respect of which the issue proceeds are
accepted by the Issuer in the United Kingdom.
106
3. Specified Currency or Currencies: [ ]
4. Aggregate Nominal Amount:
- Tranche: [ ]
- Series: [ ]
5. Issue Price of Tranche: [ ] per cent.
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
U.S.$500,000 (or the equivalent thereof
at exchange rates applicable on the
Issue Date of such Notes).
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]]
9. Interest Basis: [[ ] per cent. Fixed Rate]
[[LIBOR/EURIBOR] +/- [ ] per cent.
Floating Rate]
[Zero Coupon]
[Indexed Interest]
[specify other]
(further particulars specified below)
10. Redemption/Payment Basis: [Redemption at par]
[Indexed Redemption Amount]
[Dual Currency]
[Partly Paid]
[Instalment]
[specify other]
11. Change of Interest Basis or [Specify details of any provision for
Redemption/Payment Basis: change of Notes into another Interest
Basis or Redemption/ Payment Basis]
12. Put/Call Options: [Investor Put]
[Issuer Call]
[(further particulars specified below)]
107
13. Listing: [London/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: [ ] per cent. per annum [payable
[annually/semi-annually/quarterly/
monthly] in arrear]
(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
Amount]
(v) Fixed Day Count Fraction: [30/360 or Actual/Actual or specify
other] (Note that if interest is not
payable on a regular basis (for
example, if there are Broken Amounts
specified) Actual/Actual will not be a
suitable Fixed Day Count Fraction)
(vi) Interest Determination [ ] in each year [Insert
Date(s): 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: [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: [ ]
108
(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
Centre(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 Agent): [ ]
(vi) Interest Determination [ ] in each year [Insert
Date(s): 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))
(vi) Screen Rate Determination:
- Reference Rate: [ ]
(Either LIBOR, EURIBOR or other,
although additional information is
required if other -including fall back
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): [ ]
109
(viii) Margin(s): [+/-] [ ] per cent. per annum
(ix) Minimum Rate of Interest: [ ] per cent. per annum
(x) Maximum Rate of Interest: [ ] per cent. per annum
(xi) Floating Day Count Fraction: [ ]
(xii) Fall back provisions,
rounding provisions and any
other terms relating to the
method of calculating interest
on Floating Rate Notes, if
different from those set out
in the Conditions: [ ]
17. Zero Coupon Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the
remaining sub-paragraphs of this
paragraph)
(i) Accrual Yield: [ ] per cent. per annum
(ii) Reference Price: [ ]
(iii) Any other formula/basis of
determining amount payable: [ ]
(Consider applicable day count
fraction if euro denominated)
18. Indexed Interest Note Provisions [Applicable/Not Applicable]
(If not applicable, delete the
remaining subparagraphs 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: [ ]
110
(v) Business Day Convention: [Floating Rate Convention/Following
Business Day Convention/Modified
Following Business Day Convention/
Preceding Business Day Convention/
specify other]
(vi) Additional Business
Centre(s): [ ]
(vii) Minimum Rate of Interest: [ ] per cent. per annum
(viii) Maximum Rate of Interest: [ ] per cent. 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
payable: [ ]
(iii) Provisions applicable where
calculation by reference to
Rate of Exchange 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: [ ]
111
(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
U.S. entity.)
[Temporary Global Note exchangeable for
Definitive Notes on and after the
Exchange Date.]
25. Additional Financial Centre(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)
112
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 consequences (if any)
of failure to pay, including any
right of the Issuer to forfeit the
Notes and interest due on late
payment: [Not Applicable/give details]
28. Details relating to Instalment
Notes: amount of each instalment,
date on which each payment is to
be made: [Not Applicable/give details]
[29. Redenomination applicable: Redenomination [not] applicable
(if Redenomination is applicable,
either the applicable Fixed Day Count
Fraction or any provisions necessary to
deal with floating rate interest
calculation (including alternative
reference rates))
30. Details relating to Instalment
Notes: specify Instalment Amounts
and Instalment 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) Stabilising Manager (if any): [Not Applicable/give name]
33. If non-syndicated, name of
relevant Dealer: [ ]
34. Whether TEFRA D rules applicable
or TEFRA rules not applicable: [TEFRA D/TEFRA not applicable]
35. Additional selling restrictions: [Not Applicable/give details]
OPERATIONAL INFORMATION.
113
36. Any clearing system(s) other
than Euroclear and Clearstream,
Luxembourg and the relevant
identification number(s): [Not Applicable/give name(s) and
number(s)]
37. Delivery: Delivery [against/free of] payment
38. Additional Paying Agent(s)
(if any): [ ]
39. [Notes in respect of which the issue proceeds are accepted by the
Issuer in the United Kingdom and which are to be listed. The text set out
below may be deleted if the Issuer is relying on any of Regulation 13(4)(c)
to (g) of the Banking Xxx 0000 (Exempt Transactions) Regulations 1997.]
The Issuer confirms that it:
(a) has complied with its obligations under the relevant rules (as
defined in the Banking Xxx 0000 (Exempt Transactions) Regulations
1997 (the "Regulations") in relation to the admission to and
continuing listing of the Program and of any previous issues made
under it and listed on the same exchange as the Program;
(b) will have complied with its obligations under the relevant rules in
relation to the admission to listing of such Notes by the time when
such Notes are so admitted;
(c) has not, since the last publication, if any, in compliance with the
relevant rules of information about the Program, any previous
issues made under it and listed on the same exchange as the Program,
or the Notes, having made all reasonable enquiries, become aware of
any change in circumstances which could reasonably be regarded as
significantly and adversely affecting its ability to meet its
obligations as Issuer in respect of the Notes as they fall due; and
(d) has complied and will continue to comply with its obligations under
the Regulations to lodge all relevant information (as defined in the
Regulations) in relation to any such Notes with the London Stock
Exchange Limited.
---------------------------------------------------------------------
ISIN: [ ]
Common Code: [ ]
---------------------------------------------------------------------
[If the Issuer is relying on Regulation 13(4)(b) and the Offering Circular
does not include one, include here a summary of the tax treatment relevant
to United Kingdom resident holders of the Notes.]
[LISTING APPLICATION
114
This Pricing Supplement comprises the details required to list the issue of
Notes described herein pursuant to the listing of the U.S.$2,000,000,000
Euro Medium Term Note Program of Ciba Specialty Chemicals Corporation/Ciba
Specialty Chemicals PLC/Ciba Spezialitatenchemie Holding Deutschland GmbH].
RESPONSIBILITY
The Issuer and the Guarantor accepts responsibility for the information
contained in this Pricing Supplement.
Signed on behalf of the Issuer: Signed on behalf of the Guarantor:
By: ............................ By: ............................
Duly authorised Duly authorised
By: ............................
Duly authorised
115
ANNEXE D
TRADING DESK AND ADMINISTRATIVE INFORMATION
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
000 Xxxxx Xxxxxx Xxxx
XX Xxx 0000
Xxxxxxxxx, Xxx Xxxx
00000-0000
Telephone: 0 000 000 0000
Telefax: 1 914 785 2650
Attention: Treasurer
CIBA SPECIALTY CHEMICALS PLC
Xxxxxx Xxxx
Xxxxxxxxxxxx
Xxxxxxxx
XX00 0XX
Telephone: 00 0 000 000 000
Telefax: 44 1 625 888 380
Attention: Treasurer
CIBA SPEZIALITATENCHEMIE HOLDING XXXXXXXXXXX XXXX
Xxxxxxxxxxxxx
X-00000 Xxxxxxxxxxx
Xxxxxxx
Telephone: 00 0000 000000
Telefax: 49 6206 152816
Attention: Treasurer
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
Xxxxxxxxxxxxxx 000
XX-0000 Xxxxx
Xxxxxxxxxxx
Telephone: 00 00 000 0000
Telefax: 41 61 636 6828
Attention: Head of Capital Markets
116
The Dealers
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX
Telephone: 00 00 0000 0000
Telex: 892131 CSFB G
Telefax 4 20 7888 3719
Attention: MTN Trading
DEUTSCHE BANK AG LONDON
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 00 00 0000 0000
Telefax: 44 20 7541 2761
Attention: MTN Desk
XXXXXXX SACHS INTERNATIONAL
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 00 00 0000 0000
Telex: 94012165 GSHH G
Telefax: 44 20 7774 5711
Attention: Euro Medium Term Note Desk
117
X.X. XXXXXX SECURITIES LTD.
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 00 00 0000 0000
Telex: 8954804 MGLTD G
Telefax: 44 20 7325 8225
Attention: Euro Medium Term Note Desk
UBS AG, acting through its financial services group UBS Warburg
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 00 00 0000 0000
Telex: 887434 WDR G
Telefax: 44 20 7567 3778
Attention: MTNs and Private Placements
The Agent
The Chase Manhattan Bank
Trinity Tower
9 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Telephone: 00 0000 000000
Telex: 8954681 CMB G
Telefax: 44 1202 347438
Attention: Manager, Capital Markets Fiduciary Services
118
SIGNATORIES
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
000 Xxxxx Xxxxxx Xxxx
XX Xxx 0000
Xxxxxxxxx, Xxx Xxxx
00000-0000
Telephone: 000 000 000 0000
Telefax: 001 914 785 2650
Attention: Treasurer
By:
CIBA SPECIALTY CHEMICALS PLC
Xxxxxx Xxxx
Xxxxxxxxxxxx
Xxxxxxxx
XX00 0XX
Telephone: 00 0 000 000 000
Telefax: 44 1 625 888 380
Attention: Treasurer
By:
CIBA SPEZIALITATENCHEMIE HOLDING XXXXXXXXXXX XXXX
Xxxxxxxxxxxxx
X-00000 Xxxxxxxxxxx
Xxxxxxx
Telephone: 00 00 0000 000 000
Telefax: 00 49 6206 152 816
Attention: Treasurer
By:
119
The Guarantor
CIBA SPECIALTY CHEMICALS HOLDING INC.
Xxxxxxxxxxxxxx 000
XX-0000 Xxxxx
Xxxxxxxxxxx
Telephone: 00 00 00 000 0000
Telefax: 00 41 61 636 6828
Attention: Head of Capital Markets
By: By:
The Agent
THE CHASE MANHATTAN BANK, LONDON BRANCH
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Telephone: 00 0000 000000
Telex No: 8954681 CMB G
Telefax No: 44 1202 347438
Attention: Manager, Capital Markets Fiduciary Services
By:
CHASE MANHATTAN BANK LUXEMBOURG S.A.
0 xxx Xxxxxxx
X-0000
Xxxxxxxxxx
All communications should be sent care of the Agent
By:
Without prejudice to the foregoing execution of the Agreement by the
parties hereto, Chase Manhattan Bank Luxembourg S.A. hereby expressly and
specifically confirms its agreement with the provisions of clause 30(2)
hereof for the purposes of Article 1 of the Protocol annexed to the
Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters signed at Brussels on 27th September, 1968.
CHASE MANHATTAN BANK LUXEMBOURG S.A.
By:
120
ICM:417675.5.
Dated 16th June, 2000
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
as Issuers
- and -
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
- and -
THE CHASE MANHATTAN BANK
as Agent
- and -
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
------------------------------------------------------
AGENCY AGREEMENT
in respect of a
U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(Amended and Restated)
-------------------------------------------------------
XXXXX & XXXXX
London
CONTENTS
Clause Page
1. Definitions and interpretation..................................... 2
2. Appointment of Agent and Paying ents............................... 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..........................................................20
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 ..........................22
22. Merger and consolidation...........................................24
23. Notification of changes to Paying Agents ..........................24
24. Change of specified office.........................................24
25. Notices............................................................25
26. Taxes and stamp duties.............................................25
27. Currency indemnity.................................................25
28. Amendments.........................................................26
29. Descriptive headings...............................................26
30. Governing law and submission to jurisdiction.......................26
31. Counterparts.......................................................27
Schedules
1. Terms and Conditions of the Notes..................................37
2. Forms of Global and Definitive Notes, Receipts, Coupons Talons
and Deed of Covenant...............................................38
3. Form of Deed of Guarantee..........................................75
4. Provisions for Meetings of Noteholders.............................79
5. Form of Put Notice ................................................86
6. Operating & Administrative Procedures Memorandum...................88
Signatories............................................................111
