EXHIBIT 4.2
DEED OF COVENANT
THIS DEED OF COVENANT is made on 27th March, 2003 by each of Ciba Specialty
Chemicals Corporation, Ciba Specialty Chemicals PLC, Ciba Spezialitatenchemie
Holding Deutschland GmbH and Ciba Specialty Chemicals Eurofinance Ltd. (each an
ISSUER) in favour of the account holders of Clearstream Banking, societe anonyme
(CLEARSTREAM, LUXEMBOURG) and Euroclear Bank S.A./N.V. as operator of the
Euroclear System (EUROCLEAR), or any successor to the business thereof or any
other additional clearing system or systems as are specified in the Pricing
Supplement relating to any Note (as defined below) (each a CLEARING SYSTEM).
WHEREAS:
(a) Each Issuer has entered into an amended and restated Program Agreement
(the PROGRAM AGREEMENT, which expression includes the same as it may be
amended, supplemented, novated or restated from time to time) dated 27th
March, 2003 with Ciba Specialty Chemicals Holding Inc. (the GUARANTOR) and
the Dealers named therein under which the relevant Issuer proposes from
time to time to issue Euro Medium Term Notes (the NOTES), which amends and
restates the amended and restated program agreement dated 16th June, 2000
with Ciba Specialty Chemicals Corporation, Ciba Specialty Chemicals PLC,
Ciba Spezialitatenchemie Holdings Deutschland GmbH, Ciba Specialty
Chemicals Eurofinance Ltd., the Guarantor and the Dealers named therein
(the PRINCIPAL PROGRAM AGREEMENT).
(b) Each Issuer has also entered into an amended and restated Agency Agreement
(the AGENCY AGREEMENT, which expression includes the same as it may be
amended, supplemented, novated or restated from time to time) dated 27th
March, 2003 between, inter alios, the Issuer and JPMorgan Chase Bank (the
AGENT).
(c) The Notes will initially be represented by, and comprised in, Temporary
Global Notes (the TEMPORARY GLOBAL NOTES) and thereafter may be
represented by, and comprised in, Permanent Global Notes (the PERMANENT
GLOBAL NOTES and together with the Temporary Global Notes, the GLOBAL
NOTES), such Global Notes representing a certain number of underlying
Notes (the UNDERLYING NOTES).
(d) Each Global Note will, after issue, be deposited with a common depository
for one or more Clearing Systems (each such Clearing System or all such
Clearing Systems together, the RELEVANT CLEARING SYSTEM). Upon such
deposit of a Global Note the Underlying Notes represented by such Global
Note will be credited to a securities account or securities accounts with
the Relevant Clearing System. Any account holder with the Relevant
Clearing System which has Underlying Notes credited to its securities
account from time to time (each a RELEVANT ACCOUNT HOLDER) will, subject
to and in accordance with the terms and conditions and operating
procedures or management regulations of the Relevant Clearing System, be
entitled to transfer such Underlying Notes and (subject to and upon
payment being made by the relevant Issuer to the bearer in accordance with
the terms of the relevant Global Note) will be entitled to receive
payments from the Relevant Clearing System calculated by reference to the
Underlying Notes credited to its securities account.
(e) In certain circumstances specified in each Global Note, a Global Note will
become void. The time at which a Global Note becomes void is hereinafter
referred to as the RELEVANT TIME. In such circumstances 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
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(the COUPONS) appertaining to the Definitive Note(s) (if appropriate) had
been issued in respect of its Underlying Note(s) and such Definitive
Notes(s), Receipts (if appropriate) and Coupons (if appropriate) were held
and beneficially owned by such Relevant Account Holder.
(f) The obligations of each Issuer under this Deed have been guaranteed by the
Guarantor pursuant to the amended and restated Deed of Guarantee (the
GUARANTEE) executed by the Guarantor on 27th March, 2003 and an executed
copy of the Guarantee has been deposited with and shall be held by the
Agent for the time being for the Notes. A copy of the Guarantee shall be
available for inspection at the office of the Agent for the time being
(being at the date hereof at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx
X0 0XX).
(g) This Deed of Covenant amends and restates the amended and restated Deed of
Covenant entered into by Ciba Specialty Chemicals Corporation, Ciba
Specialty Chemicals PLC and Ciba Spezialitatenchemie Holding Deutschland
GmbH dated 27th March, 2002. This Deed of Covenant does not affect any
Notes issued pursuant to the Principal Program Agreement prior to the date
hereof.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. If any Global Note becomes void in accordance with the terms thereof the
relevant Issuer hereby undertakes and covenants with each Relevant Account
Holder (other than when any Relevant Clearing System is an account holder
of any other Relevant Clearing System) that each Relevant Account Holder
shall automatically acquire at the Relevant Time, without the need for any
further action on behalf of any person, against the relevant Issuer all
those rights which such Relevant Account Holder would have had if at the
Relevant Time it held and beneficially owned duly executed and
authenticated Definitive Note(s), Receipts (if appropriate) and Coupons
(if appropriate) in respect of each Underlying Note represented by such
Global Note which such Relevant Account Holder has credited to its
securities account with the Relevant Clearing System at the Relevant Time.
The relevant Issuer's obligation pursuant to this clause shall be a
separate and independent obligation by reference to each Underlying Note
which a Relevant Account Holder has credited to its securities account
with the Relevant Clearing System and the relevant Issuer agrees that a
Relevant Account Holder may assign its rights hereunder in whole or in
part.
2. The records of the Relevant Clearing System shall be conclusive evidence
of the identity of the Relevant Account Holders and the number of
Underlying Notes credited to the securities account of each Relevant
Account Holder. For the purposes hereof a statement issued by the Relevant
Clearing System stating:
(a) the name of the Relevant Account Holder to which such statement is
issued; and
(b) 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.
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:
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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
or Coupon, 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 or
Coupon 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 or Coupon;
(iii) any tax, assessment or governmental charge that would not have
been imposed or withheld but for the failure of the Relevant
Account Holder, if required, to comply with certification,
identification or information reporting requirements under
United States income tax laws, without regard to any tax
treaty, with respect to the payment, concerning the
nationality, residence, identity or connection with the United
States of the Relevant Account Holder
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or a beneficial owner of such Underlying Note or Coupon, 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 tax, assessment or governmental charge that would not have
been so imposed or withheld but for the presentation by the
holder of such Underlying Note or Coupon for payment on a date
more than 30 days after the Relevant Date (as defined in the
Terms and Conditions of the Underlying Note) except to the
extent that the holder thereof would have been entitled to
such additional amounts on presenting the same for payment on
the last day of such 30 day period;
(v) any estate, inheritance, gift, sales, transfer, excise, wealth
or personal property tax or any similar tax, assessment or
governmental charge;
(vi) 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 or Coupon;
(vii) 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;
(viii) any combination of items (i), (ii), (iii), (iv), (v), (vi) or
(vii);
(ix) any Underlying Note, Receipt or Coupon presented for payment
where such withholding or deduction is imposed on a payment to
an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council Meeting of
November 26-27, 2000, or any law implementing or complying
with, or introduced in order to conform to, such Directive; or
(x) any Underlying Note, Receipt or Coupon presented for payment
by or on behalf of a holder who would have been able to avoid
such withholding or deduction by presenting the relevant Note,
Receipt or Coupon to another Paying Agent in a Member State of
the EU.
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, Receipt of Coupon 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
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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, Receipt of Coupon in the absence of such withholding or
deduction; except that no such additional amounts shall be payable
with respect to any Underlying Note, Receipt of Coupon to or to the
order of a Relevant Account Holder who is liable for such taxes or
duties in respect of such Underlying Note, Receipt of Coupon by
reason of his having some connection with Germany other than the
mere holding of such Underlying Note, Receipt of Coupon or with
respect to any Underlying Note, Receipt of Coupon 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 or in respect to any
Underlying Note, Receipt or Coupon presented for payment to a paying
agent more than 30 days after the Relevant Date (as defined in the
Terms and Conditions of the Underlying Note) except to the extent
that the holder thereof would have been entitled to such additional
amounts on presenting the same for payment on such thirtieth day or
where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to any European Union
Directive on the taxation of savings implementing the conclusions of
the ECOFIN Council meeting of November 26-27, 2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive or with respect to any Underlying Note, Receipt
of Coupon presented for payment to a paying agent by or on behalf of
a holder who would have been able to avoid such withholding or
deduction by presenting the relevant Underlying Note, Receipt or
Coupon to another paying agent in a Member State of the EU. Any
advance income tax (Zinsabschlagsteuer) levied in Germany as well as
the solidarity surcharge (Solidaritatszuschlag) imposed thereon do
not constitute a withholding or deduction within the meaning of this
Clause 4(a)(b).
(c) Where the Issuer is Ciba Specialty Chemicals PLC:
All payments by the Issuer in respect of the Underlying Note,
Receipt of Coupon 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 Note, Receipt of Coupon; except that no such
additional amounts shall be payable with respect to any Underlying
Note, Receipt of Coupon to or to the order of a person liable to
such tax, duty or charge in respect of such Underlying Note, Receipt
of Coupon by reason of his having some connection with the United
Kingdom other than the mere holding or ownership of such Underlying
Note, Receipt of Coupon 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
or with respect to any Underlying Note, Receipt or Coupon presented
for payment to a paying agent more than 30 days after the Relevant
Date (as defined in the Terms and Conditions of
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the Underlying Note) except to the extent that the holder thereof
would have been entitled to such additional amounts on presenting
the same for payment on such thirtieth day or where such withholding
or deduction is imposed on a payment to an individual and is
required to be made pursuant to any European Union Directive on the
taxation of savings implementing the conclusions of the ECOFIN
Council meeting of November 26-27, 2000 or any law implementing or
complying with, or introduced in order to conform to, such Directive
or with respect to any Underlying Note presented for payment to a
paying agent by or on behalf of a holder who would have been able to
avoid such withholding or deduction by presenting the relevant
Underlying Note, Receipt or Coupon to another paying agent in a
Member State of the EU.
(d) Where the Issuer is Ciba Specialty Chemicals Eurofinance Ltd.:
All payments by the Issuer in respect of the Underlying Note,
Receipt of Coupon 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 Bermuda, 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 Note, Receipt of Coupon; except that no such
additional amounts shall be payable with respect to any Underlying
Note to or to the order of any person liable to such tax, duty or
charge in respect of such Underlying Note, Receipt of Coupon by
reason of his having some connection with Bermuda other than the
mere holding or ownership of such Underlying Note or with respect to
any Underlying Note, Receipt or Coupon presented for payment to a
paying agent more than 30 days after the Relevant Date (as defined
in the Terms and Conditions of the Underlying Note) except to the
extent that the holder thereof would have been entitled to such
additional amounts on presenting the same for payment on such
thirtieth day or where such withholding or deduction is imposed on a
payment to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 or
any law implementing or complying with, or introduced in order to
conform to, such Directive or with respect to any Underlying Note
presented for payment to a paying agent by or on behalf of a holder
who would have been able to avoid such withholding or deduction by
presenting the relevant Underlying Note, Receipt or Coupon to
another paying agent in a Member State of the EU.
5. Each Issuer hereby warrants, represents and covenants with each Relevant
Account Holder that it has all corporate power, and has taken all
necessary corporate or other steps, to enable it to execute, deliver and
perform this Deed, and that this Deed constitutes a legal, valid and
binding obligation of the relevant Issuer enforceable in accordance with
its terms subject to the laws of bankruptcy and other laws affecting the
rights of creditors generally.
6. This Deed shall take effect as a Deed Poll for the benefit of the Relevant
Account Holders from time to time and for the time being. This Deed shall
be deposited with and held by a depository for Clearstream, Luxembourg and
Euroclear, or any successor to the business thereof and for the time being
(being at the date hereof JPMorgan Chase Bank at Xxxxxxx Xxxxx, 0 Xxxxxx
Xxxx Xxxxxx, Xxxxxx X0 0XX) until all the obligations of each Issuer
hereunder have been discharged in full.
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7. Each Issuer hereby acknowledges the right of every Relevant Account Holder
to the production of, and the right of every Relevant Account Holder to
obtain (upon payment of a reasonable charge) a copy of, this Deed, and
further acknowledges and covenants that the obligations binding upon it
contained herein are owed to, and shall be for the account of, each and
every Relevant Account Holder, and that each Relevant Account Holder shall
be entitled severally to enforce the said obligations against the relevant
Issuer.
8. No rights are conferred on any person under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this Deed, but this does not
affect any right or remedy of any person which exists or is available
apart from that Act.
9. This Deed is governed by, and shall be construed in accordance with, the
laws of England.
Each Issuer hereby irrevocably agrees, for the exclusive benefit of the
Relevant Account Holders, that the courts of England are to have
jurisdiction to settle any dispute which may arise out of, or in
connection with, this Deed and that accordingly any suit, action or
proceedings (together referred to as PROCEEDINGS) arising out of, or in
connection with, this Deed may be brought in such courts. Each Issuer
irrevocably waives any objection which it may have now or hereafter to the
laying of the venue of any Proceedings in any such court and any claim
that any such Proceedings have been brought in an inconvenient forum and
further irrevocably agrees that a judgment in any Proceedings brought in
the English courts shall be conclusive and binding upon the relevant
Issuer and may be enforced in the courts of any other jurisdiction
(subject to the laws of the jurisdiction in which enforcement is sought).
Nothing contained in this Clause shall limit any right to take Proceedings
against any Issuer in any other court of competent jurisdiction, nor shall
the taking of Proceedings in one or more jurisdictions preclude the taking
of Proceedings in any other jurisdiction, whether concurrently or not
(subject to the laws of the relevant jurisdictions). Ciba Specialty
Chemicals Corporation, Ciba Spezialitatenchemie Holding Deutschland GmbH
and Ciba Specialty Chemicals Eurofinance Ltd. each hereby appoints Ciba
Specialty Chemicals PLC at its registered office for the time being to
accept service of process on its behalf. If Ciba Specialty Chemicals PLC
shall cease to be registered under the laws of England and Wales, the
relevant Issuer shall appoint another person with an office in London to
accept such service. Nothing herein shall affect the right to serve
process in any other manner permitted by law.
10. This Deed may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS whereof each Issuer has caused this Deed to be duly executed the day
and year first above mentioned.
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SIGNATORIES
EXECUTED as a Deed by CIBA ) XXXX XXXXXXXX
SPECIALTY CHEMICALS )
CORPORATION ) XXXXXX XXXXX
acting by )
and )
acting under the authority of that company )
in the presence of: )
Witness's
Signature X.XXXXXXX
------------------------------------
Name X.XXXXXXX
------------------------------------
Address C/o CIBA SPECIALTY CHEMICALS INC.
------------------------------------
XX-0000 XXXXX
------------------------------------
EXECUTED as a Deed by CIBA ) XXXX XXXXXXXX
SPECIALTY CHEMICALS )
PLC ) XXXXXX XXXXX
acting by its attorney(s) )
)
in the presence of: )
Witness's
Signature X. XXXXXXX
------------------------------------
Name X. XXXXXXX
------------------------------------
Address C/O CIBA SPECIALTY CHEMICALS INC.
------------------------------------
XX-0000 XXXXX
------------------------------------
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EXECUTED as a Deed by CIBA ) XXXX XXXXXXXX
SPEZIALITATENCHEMIE )
HOLDING DEUTSCHLAND GMBH ) XXXXXX XXXXX
acting by )
and )
acting under the authority of that company )
in the presence of: )
Witness's
Signature X. XXXXXXX
------------------------------------
Name X. XXXXXXX
------------------------------------
Address C/O CIBA SPECIALTY CHEMICALS INC.
------------------------------------
XX-0000 XXXXX
------------------------------------
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS ) XXXX XXXXXXXX
EUROFINANCE LTD. )
and SIGNED AND DELIVERED as ) XXXXXX XXXXX
a deed on its behalf by )
pursuant to a power of attorney dated 26th )
March, 2002 in the presence of: )
Witness's
Signature X. XXXXXXX
------------------------------------
Name X. XXXXXXX
------------------------------------
Address C/O CIBA SPECIALTY CHEMICALS INC.
------------------------------------
XX-0000 XXXXX
------------------------------------
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CONFORMED COPY
27TH MARCH, 2003
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
AS ISSUERS
---------------------------------------------
DEED OF COVENANT
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[XXXXX & OVERY LOGO]
LONDON
