EXHIBIT 4-2
DEED OF COVENANT
THIS DEED OF COVENANT is made on 16th June, 2000 by each of Ciba Specialty
Chemicals Corporation, Ciba Specialty Chemicals PLC and Ciba
Spezialitatenchemie Holding Deutschland GmbH (each an "Issuer") in favour of
the account holders of Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg") and Xxxxxx Guaranty Trust Company of New York, Brussels Office,
as operator of the Euroclear System, or any successor to the business
thereof or any other additional clearing system or systems as are specified
in the Pricing Supplement relating to any Note (as defined below) (each a
"Clearing System").
WHEREAS:
(A) Each Issuer has entered into an amended and restated Program Agreement
(the "Program Agreement", which expression includes the same as it may
be amended or supplemented from time to time) dated 16th June, 2000
with Ciba Specialty Chemicals Holding Inc. (the "Guarantor") and the
Dealers named therein under which the relevant Issuer proposes from
time to time to issue Euro Medium Term Notes (the "Notes"), which
amends and restates the amended and restated program agreement dated
9th July, 1999 with Ciba Specialty Chemicals Corporation, Ciba
Specialty Chemicals PLC, Ciba Spezialitatenchemie Holdings Deutschland
GmbH, Ciba Specialty Chemicals Investment Ltd., the Guarantor and the
Dealers named therein (the "Principal Program Agreement").
(B) The Notes will initially be represented by, and comprised in, Temporary
Global Notes (the "Temporary Global Notes") and thereafter may be
represented by, and comprised in, Permanent Global Notes (the "Permanent
Global Notes" and together with the Temporary Global Notes, the "Global
Notes"), such Global Notes representing a certain number of underlying
Notes (the "Underlying Notes").
(C) Each Global Note will, after issue, be deposited with a common
depository for one or more Clearing Systems (each such Clearing System
or all such Clearing Systems together, the "Relevant Clearing System").
Upon such deposit of a Global Note the Underlying Notes represented by
such Global Note will be credited to a securities account or securities
accounts with the Relevant Clearing System. Any account holder with the
Relevant Clearing System which has Underlying Notes credited to its
securities account from time to time (each a "Relevant Account Holder")
will, subject to and in accordance with the terms and conditions and
operating procedures or management regulations of the Relevant Clearing
System, be entitled to transfer such Underlying Notes and (subject to
and upon payment being made by the relevant Issuer to the bearer in
accordance with the terms of the relevant Global Note) will be entitled
to receive payments from the Relevant Clearing System calculated by
reference to the Underlying Notes credited to its securities account.
(D) In certain circumstances specified in each Global Note, a Global Note
will become void. The time at which a Global Note becomes void is
hereinafter referred to as the "Relevant Time ". In such circumstances
each Relevant Account Holder will, subject to and in accordance with
the terms of this Deed, acquire against the relevant Issuer all those
rights which such Relevant Account Holder would have had if, prior to
the Global Note becoming void, duly executed and authenticated
Definitive Note(s) (as defined in the Agency Agreement) and, if the
Notes are repayable in instalments, receipts in respect thereof (the
"Receipts") and interest coupons (the "Coupons") appertaining to the
Definitive Note(s) (if appropriate) had been issued in
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respect of its Underlying Note(s) and such Definitive Notes(s), Receipts
(if appropriate) and Coupons (if appropriate) were held and beneficially
owned by such Relevant Account Holder.
(E) The obligations of each Issuer under this Deed have been guaranteed by
the Guarantor pursuant to the amended and restated Deed of Guarantee
(the "Guarantee") executed by the Guarantor on 16th June, 2000 and an
executed copy of the Guarantee has been deposited with and shall be
held by The Chase Manhattan Bank as agent (the "Agent") for the time
being for the Notes. A copy of the Guarantee shall be available for
inspection at the office of the Agent for the time being (being at the
date hereof at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0 0XX).
(F) This Deed of Covenant amends and restates the amended and restated Deed
of Covenant entered into by Ciba Specialty Chemicals Corporation, Ciba
Specialty Chemicals PLC, Ciba Spezialitatenchemie Holding Deutschland
GmbH and Ciba Specialty Chemicals Investment Ltd. dated 9th July, 1999.
This Deed of Covenant does not affect any Notes issued pursuant to the
Original Program Agreement prior to the date hereof.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. If any Global Note becomes void in accordance with the terms thereof
the relevant Issuer hereby undertakes and covenants with each Relevant
Account Holder (other than when any Relevant Clearing System is an
account holder of any other Relevant Clearing System) that each
Relevant Account Holder shall automatically acquire at the Relevant
Time, without the need for any further action on behalf of any person,
against the relevant Issuer all those rights which such Relevant
Account Holder would have had if at the Relevant Time it held and
beneficially owned duly executed and authenticated Definitive Note(s),
Receipts (if appropriate) and Coupons (if appropriate) in respect of
each Underlying Note represented by such Global Note which such
Relevant Account Holder has credited to its securities account with the
Relevant Clearing System at the Relevant Time. The relevant Issuer's
obligation pursuant to this clause shall be a separate and independent
obligation by reference to each Underlying Note which a Relevant
Account Holder has credited to its securities account with the Relevant
Clearing System and the relevant Issuer agrees that a Relevant Account
Holder may assign its rights hereunder in whole or in part.
2. The records of the Relevant Clearing System shall be conclusive
evidence of the identity of the Relevant Account Holders and the number
of Underlying Notes credited to the securities account of each Relevant
Account Holder. For the purposes hereof a statement issued by the
Relevant Clearing System stating:
(i) the name of the Relevant Account Holder to which such statement is
issued; and
(ii) the aggregate nominal amount of Underlying Notes credited to the
securities account of such Relevant Account Holder as at the
opening of business on the first day following the Relevant Time
on which the Relevant Clearing System is open for business,
shall be conclusive evidence of the records of the Relevant Clearing
System at the Relevant Time.
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3. In the event of a dispute, the determination of the Relevant Time by
the Relevant Clearing System shall be final and conclusive for all
purposes in connection with the Relevant Account Holders with
securities accounts with the Relevant Clearing System.
4.(a) Where the Issuer is Ciba Specialty Chemicals Corporation:
The Issuer will, subject to the exceptions and limitations set forth
below, pay as additional interest on an Underlying Note such additional
amounts as are necessary in order that the net amounts receivable
pursuant to the terms of the Underlying Note by each Relevant Account
Holder who is a United States Alien (as such term is defined below),
after deduction for any present or future tax, assessment or
governmental charge of the United States (as such term is defined
below), or a political subdivision or authority thereof or therein,
imposed by withholding with respect to the payment, will not be less
than the amounts provided for in such Underlying Note to be then due
and payable; provided, however, that the foregoing obligation to pay
additional amounts shall not apply to:
(i) any tax, assessment or governmental charge that would not have
been so imposed but for the existence of any present or former
connection between such Relevant Account Holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
holder of power over, such holder, if such Relevant Account Holder
is an estate, trust, partnership or corporation) and the United
States, including, without limitation, such Relevant Account
Holder (or fiduciary, settlor, beneficiary, member, shareholder or
holder of a power) being considered as:
(A) being or having been present or engaged in a trade or
business in the United States or having or having had a
permanent establishment therein;
(B) having a current or former relationship with the United
States, including a relationship as a citizen or resident or
being treated as a resident thereof;
(C) being or having been a personal holding company, a controlled
foreign corporation, a passive foreign investment company, a
foreign personal holding company with respect to the United
States, a corporation that has accumulated earnings to avoid
United States Federal income tax or a private foundation or
other tax-exempt organisation; or
(D) an actual or a constructive "10-per cent shareholder" of the
Issuer as defined in Section 871(h)(3) of the United States
Internal Revenue Code of 1986, as amended (the "Code");
(ii) any Relevant Account Holder who is a fiduciary or partnership
or other than the sole beneficial owner of the Underlying
Note, but only to the extent that a beneficiary or settlor
with respect to such fiduciary or member of such partnership
or a beneficial owner of the Underlying Note would not have
been entitled to the payment of an additional amount had such
beneficiary, settlor, member or beneficial owner been the
Relevant Account Holder of such Underlying Note;
(iii) any tax, assessment or governmental charge that would not have been
imposed or withheld but for the failure of the Relevant Account
Holder, if required, to comply with certification, identification or
information reporting requirements under United
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States income tax laws, without regard to any tax treaty, with respect
to the payment, concerning the nationality, residence, identity or
connection with the United States of the Relevant Account Holder or a
beneficial owner of such Underlying Note, if such compliance is
required by United States income tax laws, without regard to any tax
treaty, as a precondition to relief or exemption from such tax,
assessment or governmental charge;
(iv) any estate, inheritance, gift, sales, transfer, excise, wealth or
personal property tax or any similar tax, assessment or governmental
charge;
(v) any tax, assessment or governmental charge that is payable otherwise
than by withholding from the payment of the amounts receivable in
respect of such Underlying Note;
(vi) any tax, assessment or governmental charge required to be withheld by
any paying agent from such payment of amounts receivable in respect of
any Underlying Note, if such payment can be made without such
withholding by any other paying agent; or
(vii) any combination of items (i), (ii), (iii), (iv), (v) or (vi).
As used in this Clause, "United States" means the United States of America,
the Commonwealth of Puerto Rico and each possession of the United States of
America and place subject to its jurisdiction and "United States Alien"
means any corporation, partnership, individual or fiduciary that, as to the
United States, is for United States Federal income tax purposes (A) a
foreign corporation, (B) a foreign partnership one or more of the members
of which is, for United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust, (C) a non-resident alien individual
or (D) a non-resident alien fiduciary of a foreign estate or trust.
(b) Where the Issuer is Ciba Spezialitatenchemie Holding Deutschland GmbH:
All payments in respect of the Underlying Note by the Issuer will be made
without withholding or deduction for or on account of any present or future
taxes or duties of whatever nature imposed or levied by or on behalf of
Germany or any state (Bundesland), municipality or other political
subdivision or any authority thereof or therein having power to tax, unless
such withholding or deduction is required by law. In such event, the Issuer
will pay such additional amounts as shall be necessary in order that the
net amounts received by the Relevant Account Holders after such withholding
or deduction shall equal the amounts which would otherwise have been
receivable in respect of the Underlying Note in the absence of such
withholding or deduction; except that no such additional amounts shall be
payable with respect to any Underlying Note to or to the order of a
Relevant Account Holder who is liable for such taxes or duties in respect
of such Underlying Note by reason of his having some connection with
Germany other than the mere holding of such Underlying Note or with respect
to any Underlying Note presented for payment to a paying agent which is
required to deduct or withhold an amount for or on account of such taxes or
duties if such amount can be paid without any deduction or withholding for
or on account of any taxes or duties by any other paying agent. Any advance
income tax (Zinsabschlagsteuer) levied in Germany since 1993 as well as the
solidarity surcharge (Solidaritatszuschlag) imposed thereon since 1995 do
not constitute a withholding or deduction within the meaning of this Clause
4(b).
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(c) Where the Issuer is Ciba Specialty Chemicals PLC:
All payments by the Issuer in respect of the Underlying Notes shall be made
without withholding or deduction for or on account of any present or future
tax, duty or charge of whatever nature imposed or levied by or on behalf of
the United Kingdom, or any authority thereof or therein having power to tax
unless the withholding or deduction is required by law. In that event, the
Issuer shall pay such additional amounts as will result (after such
withholding or deduction) in the receipt by the Relevant Account Holders of
the sums which would have been receivable (in the absence of such
withholding or deduction) from the Issuer in respect of their Underlying
Notes; except that no such additional amounts shall be payable with respect
to any Underlying Note to or to the order of a person liable to such tax,
duty or charge in respect of such Underlying Note by reason of his having
some connection with the United Kingdom other than the mere holding or
ownership of such Underlying Note or with respect to any Underlying Note
presented for payment to a paying agent which is required to deduct or
withhold an amount for or on account of such tax, duty or charge if such
amount can be paid without any deduction or withholding for or on account
of any tax, duty or charge by any other paying agent.
5. Each Issuer hereby warrants, represents and covenants with each Relevant
Account Holder that it has all corporate power, and has taken all necessary
corporate or other steps, to enable it to execute, deliver and perform this
Deed, and that this Deed constitutes a legal, valid and binding obligation
of the relevant Issuer enforceable in accordance with its terms subject to
the laws of bankruptcy and other laws affecting the rights of creditors
generally.
6. This Deed shall take effect as a Deed Poll for the benefit of the Relevant
Account Holders from time to time and for the time being. This Deed shall
be deposited with and held by a depository for Clearstream, Luxembourg and
Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System, or any successor to the business thereof and for the
time being (being at the date hereof The Chase Manhattan Bank at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0 0XX) until all the obligations of
each Issuer hereunder have been discharged in full.
7. Each Issuer hereby acknowledges the right of every Relevant Account Holder
to the production of, and the right of every Relevant Account Holder to
obtain (upon payment of a reasonable charge) a copy of, this Deed, and
further acknowledges and covenants that the obligations binding upon it
contained herein are owed to, and shall be for the account of, each and
every Relevant Account Holder, and that each Relevant Account Holder shall
be entitled severally to enforce the said obligations against the relevant
Issuer.
8. This Deed is governed by, and shall be construed in accordance with, the
laws of England.
Each Issuer hereby irrevocably agrees, for the exclusive benefit of the
Relevant Account Holders, that the courts of England are to have
jurisdiction to settle any dispute which may arise out of, or in connection
with, this Deed and that accordingly any suit, action or proceedings
(together referred to as "Proceedings") arising out of, or in connection
with, this Deed may be brought in such courts. Each Issuer irrevocably
waives any objection which it may have now or hereafter to the laying of
the venue of any Proceedings in any such court and any claim that any such
Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in the
English courts
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shall be conclusive and binding upon the relevant Issuer and may be
enforced in the courts of any other jurisdiction (subject to the laws of
the jurisdiction in which enforcement is sought). Nothing contained in this
Clause shall limit any right to take Proceedings against any Issuer in any
other court of competent jurisdiction, nor shall the taking of Proceedings
in one or more jurisdictions preclude the taking of Proceedings in any
other jurisdiction, whether concurrently or not (subject to the laws of the
relevant jurisdictions). Ciba Specialty Chemicals Corporation and Ciba
Spezialitatenchemie Holding Deutschland GmbH each hereby appoints Ciba
Specialty Chemicals PLC at its registered office for the time being to
accept service of process on its behalf. If Ciba Specialty Chemicals PLC
shall cease to be registered under the laws of England and Wales, the
relevant Issuer shall appoint another person with an office in London to
accept such service. Nothing herein shall affect the right to serve process
in any other manner permitted by law.
9. This Deed may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS whereof each Issuer has caused this Deed to be duly executed the day
and year first above mentioned.
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EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
CORPORATION )
and SIGNED and )
DELIVERED as a deed on its )
behalf by )
in the presence of: )
Witness's
Signature _______________________________
Name _______________________________
Address _______________________________
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
PLC and SIGNED and DELIVERED as )
a deed on its behalf by )
in the presence of: )
Witness's
Signature _______________________________
Name _______________________________
Address _______________________________
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EXECUTED as a Deed under )
Seal by CIBA SPEZIALITATENCHEMIE )
HOLDING DEUTSCHLAND GMBH )
and SIGNED and DELIVERED as )
a deed on its behalf by )
)
in the presence of: )
Witness's
Signature _______________________________
Name _______________________________
Address _______________________________
_______________________________
16th June, 2000
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
as Issuers
-------------------------
DEED OF COVENANT
(Amended and Restated)
-------------------------
XXXXX & OVERY
London
