Exhibit 4.1
PROGRAM AGREEMENT
in respect of a
EURO MEDIUM TERM NOTE PROGRAM
THIS AGREEMENT is made on 27th March, 2002 BETWEEN:
(1) CIBA SPECIALTY CHEMICALS CORPORATION of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("CSC US");
(2) CIBA SPECIALTY CHEMICALS PLC of ▇▇▇▇▇▇ Road, Macclesfield, Cheshire SK10
2NX, England ("CSC UK");
(3) CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH of ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("CSC Germany");
(4) CIBA SPECIALTY CHEMICALS EUROFINANCE LTD. of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ("CSC Bermuda");
(5) CIBA SPECIALTY CHEMICALS HOLDING INC. of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ (the "Guarantor");
(6) CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇;
(7) DEUTSCHE BANK AG LONDON of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇;
(8) ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL of Peterborough Court, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
(9) ▇.▇. ▇▇▇▇▇▇ SECURITIES LTD. of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
(10) UBS AG, acting through its business group UBS Warburg ("UBS Warburg") of ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
IT IS HEREBY AGREED as follows:
WHEREAS:
(A) CSC US, CSC UK, CSC Germany, the Guarantor and the Dealers (as defined
below) entered into an amended and restated program agreement dated 16th
June, 2000 (the "Principal Program Agreement") in respect of a
U.S.$2,000,000,000 Euro Medium Term Note Program of CSC US, CSC UK and CSC
Germany unconditionally and irrevocably guaranteed by the Guarantor.
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(B) CSC Bermuda is to be added to the Program as an Issuer.
(C) This Agreement amends and restates the Principal Program Agreement. Any
Notes issued under the Program on or after the date hereof shall be issued
pursuant to this Agreement. This does not affect any Notes issued under the
Program prior to the date of this Agreement.
1. Definitions and Interpretation
(1) For the purposes of this Agreement, except where the context requires
otherwise:
"AGENCY AGREEMENT" means the amended and restated agreement of even date
herewith between the Issuers, the Guarantor, the Agent (as defined below)
and the other Paying Agents (as defined therein) under which the Agent is
appointed as issuing agent, principal paying agent and agent bank for the
purposes of the Program;
"AGENT" means JPMorgan Chase Bank as Agent under the Agency Agreement and
any successor agent appointed by the Issuers and the Guarantor in
accordance with the Agency Agreement;
"AGREEMENT DATE" means, in respect of any Note, the date on which agreement
is reached for the issue of such Note as contemplated in Clause 2 which, in
the case of Notes issued on a syndicated basis or otherwise in relation to
which a Subscription Agreement is entered into, shall be the date upon
which the relevant Subscription Agreement is signed by or on behalf of all
the parties;
"ARRANGER" means each of UBS Warburg and any company appointed to the
position of arranger for the Program or in respect of a particular issue of
Notes under the Program and references in this Agreement to the "Arrangers"
shall be references to the relevant Arranger;
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking, societe anonyme;
"CONFIRMATION LETTER" means:
(a) in respect of the appointment of a third party as a Dealer for the
duration of the Program, the Confirmation Letter substantially in the
form set out in Part II of Appendix C hereto; and
(b) in respect of the appointment of a third party as a Dealer for one or
more particular issue(s) of Notes under the Program, the Dealer
Accession Letter substantially in the form set out in Part III of
Appendix C hereto;
"DEALER" means each of Credit Suisse First Boston (Europe) Limited,
Deutsche Bank AG London, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Internatinoal, ▇.▇. ▇▇▇▇▇▇
Securities Ltd., UBS Warburg, and any New Dealer and excludes any entity
whose appointment has been terminated pursuant to Clause 10 and notice of
termination of whose appointment has been given to the Agent by the
Issuers and the Guarantor, and references in this Agreement to the
"relevant Dealer" shall, in relation to any Note, be references to the
Dealer or Dealers with whom the relevant Issuer has agreed the issue and
purchase of such Note;
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"DEALER ACCESSION LETTER" means:
(a) in respect of the appointment of a third party as a Dealer for
the duration of the Program, the Dealer Accessino Letter
substantially in the form of Part I of Appendix C hereto; and
(b) in respect of the appointment of a third party as a Dealer for
one or more particular issue(s) of Notes under the Program, the
Dealer Accession Letter substantially in the form set out in
Part III of Appendix C hereto;
"DEED OF COVENANT" means the deed poll of even date herewith, substantially
in the form set out in Appendix F hereto, executed as a deed by each Issuer
in favour of certain accountholders with relevant clearing systems;
"DEED OF GUARANTEE" means the deed of guarantee of even date herewith
executed by the Guarantor under which the Guarantor irrevocably guarantees
the obligations of the Issuers in relation to the Program;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System, or any successor to the business thereof;
"FSMA" means the Financial Services and Markets ▇▇▇ ▇▇▇▇;
"INITIAL DOCUMENTATION LIST" means the list of documents set out in
Appendix A to this Agreement;
"ISSUER" means any of CSC US, CSC UK, CSC Germany or CSC Bermuda in its
capacity as an issuer of Notes, and references in this Agreement to the
"relevant Issuer" shall, in relation to any issue of Notes, be references
to the Issuer which is, or is intended to be, the issuer of such Notes;
"LEAD MANAGER" means, in relation to any Tranche of Notes, the person
defined as the Lead Manager in the applicable Subscription Agreement or,
when only one Dealer signs such Subscription Agreement, such Dealer;
"LISTING AGENT" means, in relation to Notes which are, or are to be:
(a) listed on the Luxembourg Stock Exchange, Dexia Banque Internationale a
Luxembourg S.A. or such other listing agent as the Issuers and the
Guarantor may from time to time appoint for the purposes of liaising
with the Luxembourg Stock Exchange; and
(b) listed on a Stock Exchange other than the Luxembourg Stock Exchange,
such listing agent as the Issuers and the Guarantor may from time to
time appoint for the purposes of liaising with such Stock Exchange;
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"LISTING RULES" means, in the case of Notes which are, or are to be, listed
on a Stock Exchange (including the Luxembourg Stock Exchange), the listing
rules and regulations for the time being in force for such Stock Exchange;
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor to the
rating agency business thereof;
"NEW DEALER" means any entity appointed as an additional Dealer for the
duration of the Program or for a particular issue of Notes in accordance
with Clause 11;
"NOTE" means a note issued or to be issued by an Issuer pursuant to this
Agreement, which Note may be represented by a Global Note or be in
definitive form;
"OFFERING CIRCULAR" means, subject to Clause 5(2), the Offering Circular
relating to the Program as revised, supplemented, amended or updated from
time to time, including in relation to each Tranche of Notes, the Pricing
Supplement relating to such Tranche and such other documents as are from
time to time incorporated therein by reference except that for the purpose
of Clause 4(2) in respect of the Agreement Date and the Issue Date, the
Offering Circular means the Offering Circular as at the Agreement Date but
not including any subsequent revision, supplement or amendment thereto;
"PRICING SUPPLEMENT" means the pricing supplement issued in relation to
each Tranche of Notes (substantially in the form of Annexe C to the
Procedures Memorandum) as a supplement to the Offering Circular and giving
details of that Tranche;
"PROCEDURES MEMORANDUM" means the Operating and Administrative Procedures
Memorandum dated 27th March, 2002 as amended or varied from time to time
(in respect of any Tranche) by agreement between the relevant Issuer, the
Guarantor and the relevant Dealer with the approval in writing of the
Agent;
"PROGRAM" means the Euro Medium Term Note Program established by this
Agreement;
"RELEVANT PARTY" means the Arranger, each Dealer (and for the purposes of
Clause 8(3) each Issuer and the Guarantor), each of their respective
affiliates and each person who controls them (within the meaning of section
15 of the Securities Act or section 20 of the Exchange Act) and each of
their respective directors, officers, employees and agents;
"SECURITIES ACT" means the Securities Act of 1933, as amended, of the
United States of America;
"STANDARD & POOR'S" means Standard & Poor's Ratings Service, a division of
the ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., or any successor to the rating agency
business thereof;
"STOCK EXCHANGE" means the Luxembourg Stock Exchange or any other or
further stock exchange(s) on which any Notes may from time to time be
listed or admitted to trading, and references in this Agreement to the
"relevant Stock Exchange" shall, in relation to any Notes, be references to
the Stock Exchange on which such Notes are from time to time, or are
intended to be, listed or admitted to trading; and
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"SUBSCRIPTION AGREEMENT" means an agreement (by whatever name called) in or
subsequently in the form set out in Appendix E hereto or in such other form
as may be agreed in writing between the relevant Issuer, the Guarantor and
the Lead Manager which agreement shall be supplemental to this Agreement.
(2) Terms and expressions defined in the Agency Agreement, the Conditions and
the Pricing Supplement applicable to any Notes and not otherwise defined in
this Agreement shall have the same meanings in this Agreement, except where
the context otherwise requires.
(3) In this Agreement, clause headings are inserted for convenience and ease of
reference only and shall not affect the interpretation of this Agreement.
(4) All references in this Agreement to the provisions of any statute shall be
deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted.
(5) All references in this Agreement to an agreement, instrument or other
document (including this Agreement, the Agency Agreement, the Deed of
Covenant, the Deed of Guarantee, any Series of Notes and any Conditions
appertaining thereto) shall be construed as a reference to that agreement,
instrument or document as the same may be amended, modified, varied,
supplemented or novated from time to time including, but without prejudice
to the generality of the foregoing, this Agreement as supplemented by any
Subscription Agreement.
(6) Words denoting the singular number only shall include the plural number
also and vice versa; words denoting the masculine gender only shall include
the feminine gender also; and words denoting persons only shall include
firms and corporations and vice versa.
(7) Any reference herein to Euroclear and/or Clearstream, Luxembourg shall,
wherever the context so permits, be deemed to include reference to any
additional or alternative clearance system approved by the relevant Issuer,
the Guarantor and the Agent.
2. AGREEMENTS TO ISSUE AND PURCHASE NOTES
(1) Subject to the terms and conditions of this Agreement, any Issuer and the
Guarantor may from time to time agree with any Dealer to issue, and any
Dealer may agree to purchase, Notes.
(2) On each occasion upon which an Issuer, the Guarantor and any Dealer agree
on the terms of the issue and purchase of one or more Notes by such Dealer:
(a) the relevant Issuer shall cause such Notes (which shall be initially
represented by a Temporary Global Note) to be issued and delivered to
a common depositary for Euroclear and Clearstream, Luxembourg so that
the securities account(s) of such Dealer with Euroclear and/or with
Clearstream, Luxembourg (as specified by such Dealer) is/are credited
with such Notes on the agreed Issue Date, as described in the
Procedures Memorandum; and
(b) the relevant Dealer shall, subject to such Notes being so credited,
cause the net purchase moneys for such Notes to be paid in the
relevant currency by transfer of funds to the relevant cash account(s)
of the Agent with Euroclear and/or Clearstream,
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Luxembourg or (in the case of syndicated issues) the relevant
account of the relevant Issuer so that such payment is credited to
such account(s) for value on the agreed Issue Date, as described in
the Procedures Memorandum.
(3) Unless otherwise agreed, the procedures which the parties must apply for
the purposes of subclause (2) are set out in the Procedures Memorandum.
Unless otherwise agreed between the relevant Issuer and the relevant
Dealers, where more than one Dealer has agreed with the relevant Issuer to
purchase a particular issue of Notes pursuant to this Clause, the
obligations of such Dealers so to purchase the Notes shall be joint and
several.
(4) Where the relevant Issuer and the Guarantor agree with two or more Dealers
to issue, and such Dealers agree to purchase, Notes on a syndicated basis,
the relevant Issuer and the Guarantor shall enter into a Subscription
Agreement with such Dealers. The Issuer and the Guarantor may also enter
into a Subscription Agreement with one Dealer only. For the avoidance of
doubt, the Agreement Date in respect of any such issue shall be the date on
which the Subscription Agreement is signed by or on behalf of all the
parties to it.
(5) Each issue of Notes denominated in a currency in respect of which
particular laws, guidelines, regulations, restrictions or reporting
requirements apply will only be issued in circumstances which comply with
such laws, guidelines, regulations, restrictions or reporting requirements.
3. CONDITIONS OF ISSUE; UPDATING
(1) FIRST ISSUE
The Arrangers shall circulate to each Dealer all of the documents and
confirmations described in the Initial Documentation List immediately after
those documents and confirmations have been given to the Arrangers by each
Issuer and the Guarantor. Before any Issuer and the Guarantor reach their
first agreement with any Dealer for the issue and purchase of Notes, that
Dealer shall have received, and found satisfactory, in its reasonable
opinion, all of the documents and confirmations described in the Initial
Documentation List.
(2) EACH ISSUE
The obligations of a Dealer under any agreement for the issue and purchase
of Notes made pursuant to Clause 2 are conditional upon:
(a) there having been, as at the proposed Issue Date, no adverse change in
the condition (financial or otherwise) of the relevant Issuer and the
Guarantor (as the case may be) which is material in the context of the
issue and offering of the Notes from that set forth in the Offering
Circular on the relevant Agreement Date, nor the occurrence of any
event making untrue or incorrect to an extent which is material as
aforesaid any of the warranties contained in Clause 4;
(b) there being no outstanding breach of any of the obligations of either
the relevant Issuer or (as the case may be) the Guarantor under this
Agreement, the Notes, the Agency Agreement, the Deed of Covenant or
the Deed of Guarantee which has not been waived by the relevant Dealer
on or prior to the proposed Issue Date;
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(c) subject to Clause 12, the aggregate nominal amount of the Notes to be
issued, when added to the aggregate nominal amount of all Notes
outstanding (as defined in the Agency Agreement) on the proposed Issue
Date, not exceeding U.S.$2,000,000,000 or its equivalent in other
currencies as determined pursuant to subclause (5);
(d) in the case of Notes which are intended to be listed, the relevant
Stock Exchange having agreed to list such Notes;
(e) no meeting of the holders of Notes (or any of them) issued by the
relevant Issuer (to consider matters which might in the reasonable
opinion of the relevant Dealer be considered to have a material
adverse effect on the issue of the Notes) having been duly convened
but not yet held or, if held but adjourned, the adjourned meeting
having not been held and neither the relevant Issuer nor the Guarantor
being aware of any circumstances which are likely to lead to the
convening of such a meeting;
(f) there having been, between the Agreement Date and the Issue Date for
such Notes, no such change in national or international financial,
political or economic conditions or currency exchange rates or
exchange controls as would, in the opinion of the relevant Dealer
(after consultation with the relevant Issuer and the Guarantor if
practicable),
be likely to prejudice materially the success of the offer, sale or
distribution by such Dealer of the Notes proposed to be issued;
(g) the forms of the Pricing Supplement, the Temporary Global Note, the
Permanent Global Note and/or the Definitive Notes in relation to the
relevant Tranche and the relevant settlement procedures, having been
agreed by the relevant Issuer, the Guarantor, the relevant Dealer and
the Agent;
(h) the relevant currency being generally accepted for settlement by
Euroclear and Clearstream, Luxembourg; and
(i) any calculations or determinations which are required by the relevant
Conditions prior to the Issue Date having been duly made.
(3) WAIVER
Any Dealer, on behalf of itself only (or, in relation to a syndicated
issue, the Lead Manager on behalf of itself and the other Managers) may by
notice in writing to the relevant Issuer and the Guarantor waive any of the
conditions precedent contained in subclauses (1) and (2) (save for the
condition precedent contained in subclause (2)(c)) in so far as they relate
to an issue of Notes to that Dealer.
(4) UPDATING OF LEGAL OPINIONS
Before the first issue of Notes occurring after the end of each annual
period commencing on the date hereof and on such other occasions as a
Dealer so requests in relation either to any Issuer or the Guarantor or
both (on the basis of reasonable grounds), the Issuers and/or the Guarantor
will procure that a further legal opinion in such form and with such
content as the Dealers may reasonably require is delivered, at the expense
of the Issuers (as to which each of the Issuers shall have joint and
several responsibility as between itself and the Guarantor
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to the Dealers). If at, or prior to, the time of any agreement to issue
and purchase Notes under Clause 2 such request is given in writing with
respect to the Notes to be issued, the receipt of such opinion in a form
satisfactory to the relevant Dealer shall be a further condition
precedent to the issue of those Notes to the relevant Dealer.
(5) DETERMINATION OF AMOUNTS OUTSTANDING
For the purposes of subclause (2)(c):
(a) the U.S. dollar equivalent of Notes denominated in a currency other
than U.S. dollars shall be determined, at the discretion of the
Issuer, either as of the Agreement Date for such Notes or on the
preceding day on which commercial banks and foreign exchange markets
are open for general business in London, in each case on the basis of
the spot rate for the sale of U.S. dollars against the purchase of the
relevant currency in the London foreign exchange market quoted by any
leading bank selected by the relevant Issuer or the Guarantor on the
relevant day of calculation;
(b) the U.S. dollar equivalent of Dual Currency Notes and Indexed Notes
shall be calculated in the manner specified above by reference to the
original nominal amount of such Notes;
(c) the U.S. dollar equivalent of Zero Coupon Notes and other Notes issued
at a discount or premium shall be calculated in the manner specified
above by reference to the net proceeds received by the relevant Issuer
for the particular issue; and
(d) the U.S. dollar equivalent of Partly Paid Notes shall be the nominal
amount regardless of the amount of purchase moneys paid.
4. REPRESENTATIONS AND WARRANTIES
(1) As at the date of this Agreement each of the Issuers and the Guarantor
(each Issuer severally as to itself and the Guarantor jointly and severally
with the relevant Issuer as to the relevant Issuer and severally as to
itself) warrant to and agree with the Dealers and each of them as follows:
(a) that the Offering Circular contains all information with regard to the
Issuers, the Guarantor and the Notes which is material in the context
of the Program and the issue and offering of Notes thereunder, that
the information contained in the Offering Circular with respect to the
Issuers, the Guarantor and the Notes is true and accurate in all
material respects and is not misleading in any material respect, that
the opinions and intentions expressed therein with respect to the
Issuers, the Guarantor and the Notes are honestly held, that there are
no other facts with respect to the Issuers, the Guarantor and the
Notes the omission of which would make the Offering Circular as a
whole or any of such information or the expression of any such
opinions or intentions misleading in any material respect and that
each of the Issuers and the Guarantor have made all reasonable
enquiries to ascertain all facts material for the purposes aforesaid,
provided that the warranty and agreement in this paragraph (a) shall
not extend to information in the Offering Circular under the heading
"Subscription and Sale";
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(b) that, except as otherwise indicated in the Offering Circular, there
has been no adverse change in the financial position or results of
operations of the Guarantor and its consolidated subsidiaries taken as
a whole which is material in the context of the issue and offering of
any Notes to be issued under the Program since the date as at which
the last published audited consolidated accounts of the Guarantor were
prepared;
(c) that each of the Issuers and the Guarantor is duly incorporated and
validly existing under the laws of its jurisdiction of incorporation
and that the creation of Notes under the Program, their offering on
the terms and subject to the conditions contained herein, the
execution and issue by the relevant Issuer of, and compliance by the
relevant Issuer with the terms of, the Notes, the Receipts and the
Coupons and the execution and delivery by or on behalf of each Issuer
of, and compliance by each Issuer with the terms of, this Agreement,
the Deed of Covenant and the Agency Agreement and the execution and
delivery by or on behalf of the Guarantor, and compliance by the
Guarantor with the terms of, the Deed of Guarantee:
(i) are in accordance with the provisions of the laws of the
jurisdiction of the relevant company and with the constitutional
documents of the relevant company;
(ii) do not infringe the terms of, or constitute a default under, any
trust deed, agreement or other instrument or obligation to which
any of the Issuers or the Guarantor is a party or by which it is
bound; and
(iii) have been duly authorised by each of the Issuers and/or the
Guarantor (as the case may be),
so that Notes issued under the Program, the Receipts, the Coupons and
the aforesaid agreements constitute, or upon due authentication and
issue or delivery will constitute, valid and legally binding
obligations of the relevant Issuer and/or the Guarantor (as the case
may be) in accordance with their respective terms (subject to
applicable bankruptcy, reorganisation, insolvency, fraudulent
transfer, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and to general
principles of equity, regardless of whether considered in a proceeding
in law or at equity);
(d) that no condition, omission, event or act has occurred which would
(or, with the giving of notice and/or the lapse of time would)
constitute an Event of Default;
(e) that, except as disclosed in the Offering Circular, none of the
Issuers or the Guarantor is engaged (whether as defendant or
otherwise) in, nor has any of the Issuers or the Guarantor knowledge
of the existence of, or any threat of, any legal, arbitration,
administrative or other proceedings the result of which might have a
material adverse effect on the financial position or operations of any
of the Issuers or the Guarantor in the context of the issue of Notes
under the Program;
(f) that all consents, approvals, authorisations, orders and clearances of
all regulatory authorities required by the Issuers or the Guarantor
under the laws of Germany, the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, the Grand Duchy of Luxembourg and
the United Kingdom (as the case may be) for or in connection with
the creation and offering of Notes under the Program, the execution
and issue of, and compliance by each Issuer and the Guarantor with
the terms of, Notes issued under the Program (including any Global
Note), the Receipts and the Coupons and the execution and delivery
of, and compliance with the terms of, this Agreement, the Agency
Agreement, the Deed of Covenant and the Deed of Guarantee have been
obtained and are in full force and effect and that the Issuers and
the Guarantor have complied with all legal and other requirements
necessary to ensure that, upon due authentication and issue in the
manner aforesaid, Notes issued under the Program, the Receipts and
the Coupons will represent valid and legally binding obligations of
the relevant Issuer and the Guarantor, payable (as regards the
Notes, any Global Note, the Receipts and the Coupons) in accordance
with their terms, that this Agreement, the Agency Agreement, the
Deed of Covenant and the Deed of Guarantee constitute valid and
legally binding obligations of the Issuers and/or the Guarantor (as
the case may be) in accordance with their respective terms (subject
to applicable bankruptcy, reorganisation, insolvency, fraudulent
transfer, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and to general
principles of equity, regardless of whether considered in a
proceeding in law or at equity) and that on issuance, due payment of
the principal and interest (including any additional amounts payable
under the Conditions of the Notes) in respect of Notes issued under
the Program and compliance by the Issuers and/or the Guarantor with
their terms and with the terms of this Agreement, the Agency
Agreement, the Deed of Covenant and the Deed of Guarantee will not
infringe any existing such laws or the terms of any such consent,
approval, authorisation, order or clearance;
(g) that the net proceeds from the issue of the Notes will be used outside
Switzerland;
(h) that none of the Issuers, the Guarantor nor any affiliate (as defined
in Rule 405 under the Securities Act) nor any persons (other than the
Dealers, any of their respective affiliates or any person acting on
behalf of any of the foregoing) acting on behalf of any of them has
engaged or will engage in any directed selling efforts (as defined in
Regulation S under the Securities Act) with respect to the Notes, and
the Issuers, the Guarantor and any affiliate and all persons (other
than the Dealers, any of their respective affiliates or any person
acting on behalf of any of the foregoing) acting on behalf of any of
them with respect to the Notes have complied and will comply with the
offering restrictions requirements of Regulation S under the
Securities Act with respect thereto; and
(i) that in relation to each Tranche of Notes for which a Dealer is named
as a Stabilising Manager in the applicable Pricing Supplement, it has
not issued and will not issue, without the prior written consent of
that Dealer, any press or other public announcement referring to the
proposed issue of Notes unless the announcement adequately discloses
that stabilising action may take place in relation to the Notes to be
issued.
(2) With regard to each issue of Notes under the Program, the relevant Issuer
and the Guarantor shall be deemed to repeat the warranties and agreements
contained in subclause (1) as at the Agreement Date for such Notes (any
agreement on such Agreement Date being deemed to
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have been made on the basis of, and in reliance on, such warranties and
agreements) and as at the Issue Date of such Notes.
(3) The Issuers and the Guarantor shall be deemed to repeat the representations
and warranties contained in subclause (1)(a) on each date on which the
Offering Circular is revised, supplemented or amended. The Issuers and the
Guarantor shall be deemed to repeat the representations and warranties
contained in subclause (1) on each date on which the aggregate nominal
amount of the Program is increased in accordance with Clause 12.
(4) The warranties and agreements contained in this Clause 4 shall continue in
full force and effect notwithstanding any investigation by or on behalf of
the Dealers or completion of the subscription and issue of any Notes.
5. UNDERTAKINGS OF THE ISSUERS AND THE GUARANTOR
(1) NOTIFICATION OF MATERIAL DEVELOPMENTS
Each Issuer and the Guarantor shall, prior to the time of an agreement
under Clause 2 (or, if such party becomes aware of the occurrence thereof
after such time but prior to the completion of the distribution by the
Dealers of the relevant Notes, promptly upon becoming aware of the
occurrence thereof), notify each Dealer of:
(a) any Event of Default or any condition, event or act in relation to
itself of which it is aware which, with the giving of notice and/or
the lapse of time (after the issue of any Notes) would constitute an
Event of Default or any breach of the representations and warranties
or undertakings contained in this Agreement, the Agency Agreement,
the Deed of Covenant, the Deed of Guarantee or any of them; and
(b) any development affecting such Issuer or the Guarantor or their
respective businesses of which it is aware which, in the reasonable
opinion of such Issuer or the Guarantor (as the case may be), is
material in the context of the Program or any issue of Notes
thereunder.
If, following the time of an agreement under Clause 2 and before the issue
of the relevant Notes, the relevant Issuer or the Guarantor becomes aware
that the conditions specified in Clause 3(2) will not be satisfied in
relation to that issue, the relevant Issuer or the Guarantor (if
applicable), as the case may be, shall forthwith notify the relevant Dealer
to that effect giving full details thereof. In such circumstances, the
relevant Dealer shall be entitled (but not bound) by written notice to the
relevant Issuer and the Guarantor to be released and discharged from its
obligations under the agreement reached under Clause 2. Without prejudice
to the generality of the foregoing, each Issuer and the Guarantor shall
from time to time promptly furnish to each Dealer such information relating
to such Issuer and/or the Guarantor (as the case may be) as such Dealer may
reasonably request, provided that such information is relevant in the
context of the Program or an issue of Notes thereunder.
(2) UPDATING OF OFFERING CIRCULAR
Following the publication of the Guarantor's audited financial information
for the year ended 31st December, 2002, and at the end of each annual
period thereafter and in the event of a
12
change in the condition of any or all of the Issuers or the Guarantor
which is material in the context of the Program or the issue of the Notes
thereunder, the Issuers and the Guarantor shall update or amend the
Offering Circular (following consultation with the Arrangers on behalf of
the Dealers) by the publication of a supplement thereto, in a form
approved by the Dealers, in the light of such change in condition. The
Offering Circular shall, as specified therein, be deemed to incorporate
by reference therein the most recently published annual accounts (if any)
of each Issuer and the Guarantor and the most recently published annual
report of the Guarantor from time to time. Upon any new financial
statements being incorporated in the Offering Circular as aforesaid or
upon the publication of a revised Offering Circular or a supplement to
the Offering Circular, the Issuers or the Guarantor (as the case may be)
shall promptly supply to each Dealer and the Agent such number of copies
of such financial statements, revised Offering Circular or supplement as
each Dealer or the Agent (as the case may be) may reasonably request.
Until a Dealer receives such financial statements, revised Offering
Circular or supplement, the definition of "Offering Circular" in Clause
1(1) shall, in relation to such Dealer, mean the Offering Circular prior
to the publication of such financial statements, revised Offering
Circular or supplement.
(3) LISTING
The Issuers and the Guarantor shall cause an initial application to be
made for Notes issued under the Program to be listed on the Luxembourg
Stock Exchange or on such other Stock Exchange as the Issuers, the
Guarantor and the Arrangers may agree. In connection with such
application in respect of any Series of Notes which is intended to be so
listed, the relevant Issuer and the Guarantor (if applicable) shall
endeavour to obtain the listing as promptly as reasonably practicable and
the relevant Issuer and the Guarantor (if applicable) shall make
reasonable endeavours to furnish any and all documents, instruments,
information and undertakings that may be necessary or advisable in order
to obtain and maintain the listing. If, after the preparation of the
Offering Circular for submission to the relevant Stock Exchange and
before whichever is the later of the Issue Date of any Notes and the date
on which listing becomes effective:
(a) there is a significant change which is material in the context of the
Notes affecting any matter contained in the Offering Circular whose
inclusion was required by the relevant Stock Exchange; or
(b) a significant new matter arises which is material in the context of
the Notes and the inclusion of information in respect of which would
have been so required if it had arisen when the Offering Circular was
prepared,
the relevant Issuer and the Guarantor shall give to the Listing Agent and
to each Dealer full information about the change or matter and shall
publish such supplementary listing particulars (in a form approved by the
Listing Agent) as may be required by the relevant Stock Exchange, and shall
otherwise comply with the Listing Rules in that regard.
Each Issuer and the Guarantor shall comply with any undertakings given by
it from time to time to the relevant Stock Exchange(s) in connection with
any Notes listed on such Stock Exchange(s) or the listing thereof and,
without prejudice to the generality of the foregoing, shall furnish or
procure to be furnished to the relevant Stock Exchange(s) all such
information
13
as the relevant Stock Exchange(s) may require in connection with the
listing on such Stock Exchange(s) of any Notes.
If any Notes cease to be listed on the relevant Stock Exchange, the
relevant Issuer and the Guarantor shall endeavour promptly to list such
Notes on a stock exchange to be agreed between the Issuers, the Guarantor
and the relevant Dealers.
(4) AGENCY AGREEMENT, DEED OF COVENANT AND DEED OF GUARANTEE
Each Issuer and the Guarantor undertakes that it will not:
(a) without prior consultation with the Dealers terminate the Agency
Agreement, the Deed of Covenant or the Deed of Guarantee or effect or
permit to become effective any amendment to the Agency Agreement, the
Deed of Covenant or the Deed of Guarantee which, in the case of an
amendment, would or might adversely affect the interests of any Dealer
or of any holder of Notes issued before the date of such amendment; or
(b) without prior consultation with the Dealers appoint a different Agent
or paying agent(s) under the Agency Agreement,
and each Issuer and the Guarantor will promptly notify each of the
Dealers of any termination of, or amendment to, the Agency Agreement,
the Deed of Covenant or the Deed of Guarantee and of any change in the
Agent or paying agent(s) under the Agency Agreement.
(5) LAWFUL COMPLIANCE
Each Issuer and the Guarantor will at all times ensure that all necessary
action is taken and all necessary conditions are fulfilled (including,
without limitation, the obtaining of all necessary consents) so that it may
lawfully comply with its obligations under the Notes, this Agreement, the
Agency Agreement, the Deed of Covenant and the Deed of Guarantee and,
further, so that it may comply with any applicable laws, regulations and
guidance from time to time promulgated by any governmental and regulatory
authorities relevant in the context of the issue of Notes under the
Program.
(6) AUTHORISED REPRESENTATIVE
Each Issuer and the Guarantor will notify the Dealers immediately in
writing if any of the persons named in the list referred to in paragraph 3
of the Initial Documentation List ceases to be authorised to take action on
behalf of such Issuer and the Guarantor or if any additional person becomes
so authorised together, in the case of an additional authorised person,
with evidence satisfactory to the Dealers that such person has been so
authorised.
(7) AUDITORS' COMFORT LETTERS
Each Issuer and the Guarantor will at the time of the preparation of the
initial Offering Circular and thereafter upon each occasion when the same
may be amended or updated, whether by means of information incorporated by
reference or otherwise (insofar as such amendment or up-dating concerns or
contains financial information about any of the Issuers or
14
the Guarantor), at the expense of the Issuers and the Guarantor (as to
which each of the Issuers will have joint and several responsibility as
between itself and the Guarantor) and at other times whenever so
requested by the Dealers or any of them (on the basis of reasonable
grounds) deliver to the relevant Dealer a comfort letter or comfort
letters from independent auditors of the Issuers (or any of them) and the
Guarantor in such form and with such content as the relevant Dealer may
reasonably request.
(8) NO OTHER ISSUES
During the period commencing on an Agreement Date in respect of any Notes
and ending on the Issue Date with respect to those Notes, none of the
Issuers or the Guarantor will, without prior consultation with the relevant
Dealer, issue or agree to issue any other listed notes, bonds or other
securities of whatsoever nature (other than Notes to be issued under the
Program) where such notes, bonds or other securities would have the same
maturity and currency as the Notes to be issued on the relevant Issue Date.
(9) INFORMATION ON NOTEHOLDERS' MEETINGS
Each Issuer or the Guarantor will, at the same time as it is despatched,
furnish the Dealers with a copy of every notice of a meeting of the holders
of the Notes (or any of them) which is despatched at the instigation of the
relevant Issuer or the Guarantor (as the case may be) and will notify the
Dealers immediately after it becomes aware that a meeting of the holders of
the Notes (or any of them) has been convened by holders of the Notes.
(10) RATING
Each Issuer (failing whom the Guarantor) undertakes promptly to notify
the Dealers of any change in the rating given by Standard & Poor's,
Moody's or such other rating agency as notified to the Dealers for any of
the Notes to be issued under the Program by it, or upon it becoming aware
that such rating is listed on 'Creditwatch' or other similar publication
of formal review by the relevant rating agency.
(11) COMMERCIAL PAPER
In respect of any Tranche of Notes which must be redeemed before the first
anniversary of the date of its issue, the Issuer will issue such Notes only
if the following conditions apply (or the Notes can otherwise be issued
without contravention of Section 19 of the FSMA):
(a) the relevant Dealer covenants in the terms set out in paragraph 2(ii)
of Appendix B; and
(b) the redemption value of each Note is not less than (pound)100,000 (or
an amount of equivalent value denominated wholly or partly in a
currency other than sterling), and no part of any Note may be
transferred unless the redemption value of that part is not less than
(pound)100,000 (or such an equivalent amount).
6. INDEMNITY
(1) Without prejudice to the other rights or remedies of the Dealers, each
Issuer (severally as to itself) and the Guarantor (jointly and severally
with the relevant Issuer and severally as to
15
itself) undertakes to the Arranger and each Dealer that if that Arranger
or Dealer or any Relevant Party relating to that Arranger or Dealer
incurs any liability, damages, cost, loss or expense (including, without
limitation, legal fees, costs and expenses) (a "Loss") arising out of, in
connection with, or based on:
(a) any failure by the relevant Issuer to issue on the agreed Issue Date
any Notes which a Dealer has agreed to purchase (unless such failure
is as a result of the failure by the relevant Dealer to pay the
aggregate purchase price for such Notes); or
(b) any actual or alleged breach of the representations, warranties and
undertakings contained in, or made or deemed to be made by the
relevant Issuer and/or the Guarantor under, this Agreement (any such
allegation being made by a person other than a Relevant Party); or
(c) any untrue or misleading (or allegedly untrue or misleading)
statement, which is material (or allegedly material) in the context of
the Program and the issue and offering of Notes by such Issuer
thereunder, in, or any material omission (or alleged omission) from,
the Offering Circular or any part thereof (any such allegation being
made by a person other than a Relevant Party).
the relevant Issuer or, as the case may be, the Guarantor shall (subject as
provided in subclause (2)) pay to that Arranger or Dealer on demand an
amount equal to such Loss. No Arranger or Dealer shall have any duty or
obligation, whether as fiduciary or trustee for any Relevant Party or
otherwise, to recover any such payment or to account to any other person
for any amounts paid to it under this Clause 6(1).
(2) If any action, proceeding, claim or demand shall be brought or asserted
against any Relevant Party in respect of which an indemnity is to be
sought against another party under Clause 6(1) (the "Indemnifying
Person"), the Relevant Party shall promptly notify the Indemnifying
Person in writing, and the Indemnifying Person shall have the option in
the name of the Relevant Party to assume the defence thereof, including
the employment of legal advisers approved by the Relevant Party (which
approval shall not be unreasonably withheld or delayed) subject to the
payment by the Indemnifying Person of all fees and expenses relating
thereto provided that such legal advisers shall not, save with the
consent of the Relevant Party (which consent shall not be unreasonably
withheld or delayed), also be legal advisers to the Indemnifying Person
and provided further that if the defendants in any such action,
proceeding, claim or demand include the Relevant Party and the Relevant
Party shall have reasonably concluded that there may be legal defences
available to the Relevant Party which are different from or additional to
those available to the Indemnifying Person and in the event that the
Indemnifying Person does not wish to assume, or is prevented from
assuming, such different or additional legal defences on behalf of the
Relevant Party, the Relevant Party shall have the right, at the expense
of the Indemnifying Person, to select separate legal advisers to assume
such legal defences and otherwise to participate in the defence of such
action, proceeding, claim or demand on behalf of the Relevant Party.
Upon receipt of notice from the Indemnifying Person of its election so to
assume the defence of any such action, proceeding, claim or demand and
approval by the Relevant Party as aforesaid of legal advisers, the
Indemnifying Person will not be liable to any Relevant Party for
16
any fees or expenses subsequently incurred by such Relevant Party in
connection with the defence thereof unless:
(i) the Relevant Party shall have employed legal advisers in connection
with the assumption of legal defences in accordance with the proviso
to the preceding paragraph; or
(ii) the Indemnifying Person shall not have employed legal advisers, or
taken other measures, approved by or on behalf of the Relevant Party
to represent such Relevant Party within a reasonable time after notice
has been received by the Indemnifying Person of commencement of the
action or proceedings or the making of any claim or demand; or
(iii) the Indemnifying Person has authorised the employment of separate
legal advisers by the Indemnifying Person,
in which case the Indemnifying Person will reimburse the Relevant Party all
such reasonable fees and expenses.
Each Relevant Party undertakes not to compromise or settle any such action,
proceedings, claim or demand effected without the written consent of the
Indemnifying Person. Each Indemnifying Person undertakes not to compromise
or settle any such action, proceedings, claims or demands effected without
the written consent of the Relevant Party (consent is not to be
unreasonably withheld or delayed). If any such action, proceeding, claim or
demand shall be settled with the authority and written consent of the
Indemnifying Person or if there be a final judgment for the plaintiff in
relation thereto in respect of which the Relevant Party is entitled to
indemnification hereunder, the Indemnifying Person agrees to indemnify and
hold harmless the Relevant Party from and against any loss or liability by
reason of such settlement or judgment (other than any fees and expenses
incurred in circumstances where the Indemnifying Person is not to be liable
therefor under the preceding paragraph).
7. AUTHORITY TO DISTRIBUTE DOCUMENTS
Subject to Clause 8 below, each Issuer and the Guarantor hereby
authorises each of the Dealers on behalf of each Issuer and the Guarantor
to provide copies of the Offering Circular and such additional written
information as the relevant Issuer or the Guarantor shall, in writing,
provide to and authorise the Dealers so to use to actual and potential
purchasers of Notes.
8. DEALERS' UNDERTAKINGS
(1) Each Dealer agrees to comply with the restrictions and agreements set
out in Appendix B hereto.
(2) Each Dealer acknowledges that:
(i) none of the Issuers nor the Guarantor has authorised it to give
any information or make any representation in connection with any
offering, issue, subscription or sale of any Notes other than
those contained in the Offering Circular or the information
17
approved in writing and provided by such Issuer or the Guarantor
pursuant to Clause 7;
(ii) it will not circulate any version of the Offering Circular other
than the latest version of the Offering Circular published by
such Issuer and made available to such Dealer from time to time;
and
(iii) it shall promptly cease use or distribution of the Offering
Circular or any additional written information provided for in
Clause 7 upon receipt of notice from any Issuer or the Guarantor
that the Offering Circular or such information requires updating
or correction.
(3) Each Dealer undertakes with each of the Issuers, the Guarantor and the
other Dealers to indemnify, defend and hold harmless the Relevant
Party against any losses, liabilities, claims, charges, actions and
demands, and any reasonable out-of-pocket costs and expenses which the
Relevant Party may incur or which may be made against the Relevant
Party arising out of, or in connection with:
(a) the making by such Dealer of any unauthorised representation or
the giving by it of any information which is not contained in the
Offering Circular or otherwise authorised in accordance with
Clause 7; or
(b) any failure by such Dealer to observe any of the restrictions or
agreements contained in Appendix B hereto.
(4) If any claim, demand or action is brought against any such Relevant
Party in respect of which indemnity may be sought from a Dealer
pursuant to Clause 8(3), the provisions of Clause 6(2) shall apply,
mutatis mutandis, in relation thereto.
9. FEES, EXPENSES AND STAMP DUTIES
(1) The Issuers and the Guarantor jointly and severally undertake that they
shall:
(a) pay to each Dealer all commissions from time to time agreed in
connection with the sale of any Notes to that Dealer (and any value
added or other similar tax thereon); and
(b) pay (together with any value added tax or other similar tax thereon):
(i) the fees and expenses of their legal advisers and auditors; and
(ii) the cost of listing and maintaining the listing of any Notes to
be issued under the Program which are to be listed on a Stock
Exchange;
(2) The Issuers and the Guarantor jointly and severally undertake that they
shall:
(a) pay (together with any value added tax or other similar tax thereon):
(i) the fees and expenses payable to the Agent and any paying agents;
18
(ii) all expenses (other than those of the Agent, any paying agent or
the Dealers) in connection with the issue, authentication,
packaging and initial delivery of Notes and the preparation of
Global Notes, this Agreement, the Agency Agreement, the Deed of
Guarantee and the preparation and printing of Notes, the Offering
Circular and any amendments or supplements thereto (including the
updating of any legal opinions issued pursuant to Clause 3(4) and
of any auditors' comfort letters issued pursuant to Clause 5(7));
and
(iii) the cost of any publicity agreed in writing by any Issuer or the
Guarantor in connection with the Program or any issue of any
Notes;
(b) pay to UBS Warburg such amount as is separately agreed in relation to
the fees and disbursements of the legal advisers appointed to
represent the Dealers (including any value added tax or other similar
tax thereon) in connection with the negotiation, preparation,
execution and delivery of this Agreement, the Agency Agreement, the
Deed of Covenant, the Deed of Guarantee and any documents referred to
in any of them and any other documents required in connection with the
creation of the Program; and
(c) pay promptly, and in any event before any penalty becomes payable, any
stamp, documentary, registration or similar duty or tax (including any
stamp duty reserve tax) payable in Germany, the United States of
America, the United Kingdom, Switzerland or the Grand Duchy of
Luxembourg in connection with the entry into, performance, enforcement
or admissibility in evidence of this Agreement, any communication
pursuant hereto, the Agency Agreement, the Deed of Covenant, the Deed
of Guarantee or any Note and shall indemnify each Dealer against any
liability with respect to or resulting from any delay in paying or
omission to pay any such duty or tax.
10. TERMINATION OF APPOINTMENT OF DEALERS
The Issuers, the Guarantor or (as to itself) a Dealer may terminate the
arrangements described in this Agreement by giving not less than 30 days'
written notice to the other parties hereto. The Issuers or the Guarantor
may terminate the appointment of a Dealer or Dealers by giving not less
than 30 days' written notice to such Dealer or Dealers (with a copy
promptly thereafter to all the other Dealers and the Agent). Termination
shall not affect any rights or obligations (including but not limited to
those arising under Clause 6, 8 or 9) which have accrued at the time of
termination or which accrue thereafter in relation to any act or omission
or alleged act or omission which occurred prior to such time.
11. APPOINTMENT OF NEW DEALERS
(1) Nothing in this Agreement shall prevent the Issuers or the Guarantor from
appointing one or more New Dealers for the duration of the Program or, with
regard to a particular issue of Notes, the relevant Issuer and the
Guarantor (if applicable) from appointing one or more New Dealers for the
purposes of that issue, in either case upon the terms of this Agreement and
provided that, unless such appointment is effected pursuant to a
Subscription Agreement:
19
(a) any New Dealer shall have first delivered to the Issuers and the
Guarantor a Dealer Accession Letter; and
(b) the Issuers and the Guarantor shall have delivered to such New Dealer
a Confirmation Letter.
Upon receipt of the relevant Confirmation Letter or execution of the
relevant Subscription Agreement, as the case may be, each such New Dealer
shall, subject to the terms of the relevant Dealer Accession Letter and the
relevant Confirmation Letter or the relevant Subscription Agreement, as the
case may be, become a party to this Agreement, vested with all authority,
rights, powers, duties and obligations of a Dealer as if originally named
as a Dealer hereunder provided that, except in the case of the appointment
of a New Dealer for the duration of the Program, following the issue of the
Notes of the relevant Tranche, the relevant New Dealer shall have no
further such authority, rights, powers, duties or obligations except such
as may have accrued or been incurred prior to or in connection with the
issue of such Notes.
(2) The Issuers and/or the Guarantor shall promptly notify the Agent and the
other Dealers of any appointment of a New Dealer for the duration of the
Program by supplying to such parties a copy of any Dealer Accession Letter
and Confirmation Letter. No such notice shall be required to be given in
the case of an appointment of a New Dealer for a particular issue of Notes.
12. INCREASE IN THE AGGREGATE NOMINAL AMOUNT OF THE PROGRAM
(1) From time to time the Issuers and the Guarantor may wish to increase the
aggregate nominal amount of the Notes that may be issued under the Program.
In such circumstances, the Issuers and the Guarantor may request such an
increase (subject as set out in subclause (2)) by delivering to the Listing
Agent and the Dealers the letter substantially in the form set out in
Appendix D hereto. Unless notice to the contrary is received by the Issuers
or the Guarantor no later than 10 days after notice was given to the
Dealers and the Listing Agent, each such Dealer and the Listing Agent will
be deemed to have given its consent to the increase in the nominal amount
of the Program, whereupon all references in this Agreement and the
Procedures Memorandum to a Euro Medium Term Note Program of a certain
nominal amount, shall be and shall be deemed to be references to a Euro
Medium Term Note Program of the increased nominal amount.
(2) Notwithstanding subclause (1), the right of the Issuers and the Guarantor
to increase the aggregate nominal amount of the Program shall be subject
to each Dealer having received and found satisfactory all the documents
and confirmations described in the Initial Documentation List (with such
changes as may be relevant, with reference to the circumstances at the
time of the proposed increase as are agreed between the Issuers, the
Guarantor and the Dealers), and the delivery of any further conditions
precedent that any of the Dealers may reasonably require, including,
without limitation, the production of a supplementary Offering Circular
by the Issuers and the Guarantor and any further or other documents
required by the relevant Stock Exchange(s) for the purpose of listing the
Notes to be issued under the Program on the relevant Stock Exchange(s).
The Arrangers shall circulate to the Dealers all the documents and
confirmations described in the Initial Documentation List and any further
conditions precedent so required. Any Dealer must notify the Arrangers,
the Issuers and the Guarantor
20
within 10 business days of receipt if it considers, in its reasonable
opinion, such documents, confirmations and, if applicable, such further
conditions precedent to be unsatisfactory.
13. STATUS OF THE ARRANGERS
(1) Each of the Dealers agrees that each Arranger has only acted in an
administrative capacity to facilitate the establishment and/or maintenance
of the Program and has no responsibility to it for (a) the adequacy,
accuracy, completeness or reasonableness of any representation, warranty,
undertaking, agreement, statement or information in the Offering Circular,
any Pricing Supplement, this Agreement or any information provided in
connection with the Program or (b) the nature and suitability of it of all
legal, tax and accounting matters and all documentation in connection with
the Program or any Tranche.
(2) The Arrangers shall have only those duties, obligations and
responsibilities expressly specified in this Agreement.
14. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
15. COMMUNICATIONS
(1) All communications shall be by fax or letter delivered by hand or (but only
where specifically provided in the Procedures Memorandum) by telephone.
Each communication shall be made to the relevant party at the fax number or
address or telephone number and, in the case of a communication by fax or
letter, marked for the attention of, or (in the case of a communication by
telephone) made to, the person(s) from time to time specified in writing by
that party to the other for the purpose. The initial telephone number, fax
number and address of, and person(s) so specified by, each party are set
out on the signature pages hereof.
(2) A communication shall be deemed received (if by fax) when an
acknowledgement of receipt is received, (if by telephone) when made or (if
by letter) when delivered, in each case in the manner required by this
clause. Every communication shall be irrevocable save in respect of any
manifest error therein.
16. BENEFIT OF AGREEMENT
(1) This Agreement shall be binding upon and shall inure for the benefit of
each Issuer, the Guarantor and each Dealer and their respective successors
and permitted assigns.
(2) The Dealers may assign or transfer their rights or obligations under this
Agreement with the prior written consent of the Issuers and the Guarantor
(except for an assignment and/or transfer of all of a Dealer's rights and
obligations under this Agreement by operation of law resulting directly
from a merger by, or sale of all or substantially of all the assets of,
such Dealer). If the Dealers assign their rights or transfer their
obligations as provided in this clause, the relevant assignee or
transferee shall be treated as if it were a party to this Agreement with
effect from the date on which such assignment or transfer takes effect;
provided that any transfer shall only become effective when the Issuers
and the Guarantor have received an undertaking from the transferee to be
bound by this Agreement and to
21
perform the obligations transferred to it (in form and substance
reasonably satisfactory to the Issuers and the Guarantor).
17. CURRENCY INDEMNITY
If, under any applicable law and whether pursuant to a judgment being made
or registered against any Issuer and/or (as the case may be) the Guarantor
or in the liquidation, insolvency or analogous process of the relevant
Issuer and/or (as the case may be) the Guarantor or for any other reason,
any payment under or in connection with this Agreement is made or falls to
be satisfied in a currency (the "other currency") other than that in which
the relevant payment is expressed to be due (the "required currency") under
this Agreement, then, to the extent that the payment (when converted into
the required currency at the rate of exchange on the date of payment or, if
it is not practicable for the relevant Dealer to purchase the required
currency with the other currency on the date of payment, at the rate of
exchange as soon thereafter as it is practicable for it to do so) actually
received by the relevant Dealer falls short of the amount each due under
the terms of this Agreement, the relevant Issuer and the Guarantor each
undertakes that it shall, as a separate and independent obligation,
indemnify and hold harmless each Dealer against the amount of such
shortfall. For the purpose of this clause "rate of exchange" means the rate
at which the relevant Dealer is able on the London foreign exchange market
on the relevant date to purchase the required currency with the other
currency and shall take into account any premium and other reasonable costs
of exchange. The Dealers understand and agree that in the event that the
required currency is replaced by the Euro after the date hereof, the Euro
will not be considered an "other currency" for the purposes of this Clause
17.
18. CALCULATION AGENT
(1) In the case of any Series of Notes which require the appointment of a
Calculation Agent the Agent shall act as Calculation Agent, unless (a) the
relevant Issuer or the Guarantor appoints another person as Calculation
Agent with the approval of the relevant Dealer or (in the case of a
syndicated issue) the Lead Manager or (b) the relevant Dealer or (in the
case of a syndicated issue) the Lead Manager requests the relevant Issuer
to appoint such Dealer or Lead Manager, or a person nominated by such
Dealer or Lead Manager (a "Nominee"), as Calculation Agent.
(2) Should such an appointment be made by the relevant Issuer or Guarantor
(with such approval) or such a request be made to the relevant Issuer and
agreed to by the relevant Issuer and the Guarantor, the appointment of that
other person, Dealer, Lead Manager or Nominee shall be automatic upon the
issue of the relevant Series of Notes, and shall, except as agreed, be on
the terms set out in the Calculation Agency Agreement attached as Appendix
A to the Agency Agreement, and no further action shall be required to
effect the appointment of such Dealer, other person, Lead Manager or
Nominee as Calculation Agent in relation to that Series of Notes. The name
of the other person, Dealer, Lead Manager or Nominee so appointed will be
entered in the relevant Pricing Supplement.
19. STABILISATION
(1) In connection with the distribution of any Tranche of Notes, the Dealer
(if any) designated as stabilising manager in the applicable Pricing
Supplement may over-allot or effect transactions
22
which support the market price of Notes of the Series of which such
Tranche forms a part at a level higher than that which might otherwise
prevail, but in doing so such Dealer shall act as principal and not as
agent of the relevant Issuer or the Guarantor. Such stabilising, if
commenced, may be discontinued at any time. Any loss resulting from
over-allotment and stabilisation shall be borne, and any net profit
arising therefrom shall be retained, by the stabilising manager for its
own account. Such stabilising shall be done in accordance with the
applicable laws.
(2) The Issuer confirms that it has been informed of the existence of the
informational guidance published by the Financial Services Authority in
relation to stabilisation.
20. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
21. GOVERNING LAW AND JURISDICTION
(1) This Agreement and every agreement for the issue and purchase of Notes as
referred to in Clause 2 shall be governed by, and construed in accordance
with, the laws of England.
(2) Each party to this Agreement hereby irrevocably agrees for the exclusive
benefit of the other parties to this Agreement that the courts of England
are to have jurisdiction to settle any disputes which may arise out of or
in connection with this Agreement and that accordingly any suit, action or
proceedings (together referred to as "PROCEEDINGS") arising out of or in
connection with this Agreement may be brought in such courts. Each party to
this Agreement hereby irrevocably waives any objection which it may have to
the laying of the venue of any Proceedings in any such courts and any claim
that any such Proceedings have been brought in an inconvenient forum and
hereby further irrevocably agrees that a judgment in any Proceedings
brought in the English courts shall be conclusive and binding upon such
party and may be enforced in the courts of any other jurisdiction (subject
to the laws of the jurisdiction in which enforcement is sought). Nothing
contained herein shall limit any right to take Proceedings against any
party to this Agreement in any other court of competent jurisdiction
(outside the Contracting States as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982), nor shall the taking of Proceedings
in one or more jurisdictions preclude the taking of Proceedings in any
other jurisdiction, whether concurrently or not (subject to the laws of the
relevant jurisdictions). Each of CSC US, CSC Germany, CSC Bermuda and the
Guarantor hereby appoints CSC UK as its agent for service of process and
agrees that, in the event of ceasing so to act or ceasing to be registered
in England, it will appoint another person as its agent for service of
process in England in respect of any Proceedings.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
23
APPENDIX A
INITIAL DOCUMENTATION LIST
1. A certified copy of:
(a) the Certificate of Incorporation of CSC US;
(b) the Memorandum and Articles of Association of CSC UK;
(c) the Articles of Association of CSC Germany;
(d) the Memorandum of Association and Bye-Laws of CSC Bermuda; and
(e) the Articles of Incorporation of the Guarantor,
unless these have not changed since the date they were last provided to the
Dealers.
2. A certified copy of all resolutions and other authorisations required to be
passed or given, and evidence of any other action required to be taken, on
behalf of each Issuer and the Guarantor, as applicable:
(a) to approve this Agreement, the Agency Agreement, the Deed of Covenant,
the creation of the Program, the issue of Notes under the Program and
the execution of the Deed of Guarantee by the Guarantor;
(b) to authorise appropriate persons to execute each of this Agreement,
the Agency Agreement, the Deed of Covenant, the Deed of Guarantee and
Notes issued under the Program and to take any other action in
connection therewith; and
(c) to authorise appropriate persons to enter into agreements with any
Dealer on behalf of each Issuer and the Guarantor to issue Notes in
accordance with Clause 2 of this Agreement.
3. A certified list of the names, titles and specimen signatures of the
persons authorised on behalf of each Issuer and the Guarantor in accordance
with paragraph 2(c) above unless these have not changed since the date they
were last provided to the Dealers.
4. Certified copies of any other governmental or other consents required for
each Issuer and the Guarantor to issue Notes under the Program, for the
Guarantor to guarantee Notes issued under the Program, for each Issuer and
the Guarantor (as the case may be) to execute and deliver this Agreement,
the Deed of Covenant and the Agency Agreement and for each Issuer and the
Guarantor to fulfil its respective obligations under this Agreement, the
Agency Agreement, the Deed of Covenant and the Notes.
5. Confirmation that master Global Notes (from which copies may be made for
each Tranche), duly executed by a person or persons authorised to take
action on behalf of the relevant Issuer as specified in paragraph (2)(b)
above, have been delivered to the Agent.
24
6. Legal opinions addressed to each of the Dealers dated on or after the date
of this Agreement, in such form and with such content as the Dealers may
reasonably require, from:
(a) Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, legal advisers to CSC Germany as to
German law;
(b) Cravath, Swaine & ▇▇▇▇▇, legal advisers to CSC US as to U.S. law;
(c) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, legal advisers to CSC Bermuda as to
Bermudan law;
(d) Homburger, legal advisers to the Guarantor as to Swiss law; and
(e) ▇▇▇▇▇ & ▇▇▇▇▇, legal advisers to the Dealers as to English law.
7. A conformed copy of the Agency Agreement and the Deed of Guarantee and
confirmation that an executed copy of each such document has been delivered
to the Paying Agents and the Common Depositary for Euroclear and
Clearstream, Luxembourg.
8. A conformed copy of the Deed of Covenant and confirmation that an executed
copy of such deed has been delivered to the Agent and the Common Depositary
for Euroclear and Clearstream, Luxembourg.
9. A printed final version of the Offering Circular.
10. Confirmation from the Listing Agent that the Luxembourg Stock Exchange will
list Notes to be issued under the Program.
11. A comfort letter from the independent auditors of each Issuer and the
Guarantor, in such form and with such content as the Dealers may reasonably
request.
12. Confirmation that the Program has been rated A by Standard & Poor's and A2
by Moody's.
▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
(1) The Notes have not been and will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Securities Act or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Dealer represents and agrees that it and any of its
affiliates and any person acting on its or their behalf have offered and
sold any Notes, and will offer and sell any Notes (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the
completion of the distribution of all Notes of the Tranche of which such
Notes are a part, as determined and notified by the Agent to such Dealer,
as provided below, only in accordance with Rule 903 of Regulation S under
the Securities Act. Accordingly, each Dealer, its affiliates and any
persons acting on its or their behalf have not engaged and will not engage
in any directed selling efforts with respect to the Notes, and have
complied and will comply with the offering restrictions requirement of
Regulation S. Each Dealer who has purchased Notes of a Tranche hereunder
(or in the case of a sale of a Tranche of Notes issued to or through more
than one Dealer, each of such Dealers as to the Notes of such Tranche
purchased by or through it) shall determine and certify to the Agent the
completion of the distribution of the Notes of such Tranche. On the basis
of such certification or certifications, the Agent agrees to notify such
Dealer or Dealers of the end of the distribution compliance period with
respect to such Tranche. Each Dealer also agrees that, at or prior to
confirmation of sale of Notes, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration
that purchases Notes from it or any of its affiliates or any person acting
on its or their behalf during the distribution compliance period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the completion of the distribution of
the Securities as determined and notified by the Agent for the
Securities to [name of Dealer(s)], except in either case in accordance
with Regulation S under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
Terms used in this sub-clause 1(1) have the meanings given to them by
Regulation S.
(2) In addition:
(1) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D RULES"), each Dealer (a) represents that
it has not offered or sold, and agrees that during the restricted
period it will not offer or sell, Notes in bearer form to a person who
is within the United States or its possessions or to a United States
person, and (b) represents that it has not delivered and agrees that
it will not deliver within the
26
United States or its possessions definitive Notes in bearer form
that are sold during the restricted period;
(2) each Dealer represents that it has and agrees that throughout the
restricted period it will have in effect procedures reasonably
designed to ensure that its employees or agents who are directly
engaged in selling Notes in bearer form are aware that such Notes may
not be offered or sold during the restricted period to a person who is
within the United States or its possessions or to a United States
person, except as permitted by the D Rules;
(3) if it is a United States person, each Dealer represents that it is
acquiring the Notes for purposes of resale in connection with their
original issuance and if it retains Notes in bearer form for its own
account, it will only do so in accordance with the requirements of
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6); and
(4) with respect to each affiliate that acquires Notes from a Dealer for
the purpose of offering or selling such Notes during the restricted
period, such Dealer repeats and confirms the representations and
agreements contained in sub-clauses (1), (2) and (3) on such
affiliate's behalf.
Terms used in this sub-clause 1(2) have the meanings given to them by
the U.S. Internal Revenue Code and regulations thereunder, including
the D Rules.
(3) Each Dealer represents that it has not entered and agrees that it will not
enter into any contractual arrangement with respect to the distribution or
delivery of Notes, so as to cause any person to become a "distributor"
within the meaning of Regulation S or the D Rules except with their
affiliates or with the prior written consent of the relevant Issuer and the
Guarantor (in which case such Dealer will obtain for the benefit of the
Issuer and the Guarantor the agreement of such person to the
representations and agreements contained in Clauses 1(1) and 1(2) above).
(4) Each issue of Indexed Notes and Dual Currency Notes shall be subject to
such additional U.S. selling restrictions as the relevant Issuer and the
relevant Dealer or Dealers shall agree as a term of the issue and purchase
of such Notes, which additional selling restrictions shall be set out in
the Pricing Supplement. Each Dealer agrees that it shall offer, sell and
deliver such Notes only in compliance with such additional U.S. selling
restrictions.
2. UNITED KINGDOM
Each Dealer represents and agrees that:
(i) in relation to Notes which have a maturity of one year or more, it has
not offered or sold and, prior to the expiry of the period of six
months from the Issue Date of such Notes, will not offer or sell to
persons in the United Kingdom any Notes except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995
(as amended);
27
(ii) in relation to any Notes which must be redeemed before the first
anniversary of the date of their issue, (a) it is a person whose
ordinary activities involve it in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
its business and (b) it has not offered or sold and will not offer
or sell any Notes other than to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or as agent) for the purposes of their
businesses or who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for the
purposes of their businesses where the issue of the Notes would
otherwise constitute a contravention of Section 19 of the FSMA by
the Issuer;
(iii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue of any Notes in
circumstances in which Section 21(1) of the FSMA does not apply to the
relevant Issuer or the Guarantor; and
(iv) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to any Notes in,
from or otherwise involving the United Kingdom.
3. JAPAN
The Notes have not been and will not be registered under the Securities and
Exchange Law of Japan (the "SECURITIES AND EXCHANGE LAW") and each Dealer
agrees that it will not offer or sell any Notes, directly or indirectly, in
Japan or to, or for the benefit of, any resident of Japan (which term as
used herein means any person resident in Japan, including any corporation
or other entity organised under the laws of Japan), or to others for
re-offering or resale, directly or indirectly, in Japan or to a resident of
Japan except pursuant to an exemption from the registration requirements
of, and otherwise in compliance with the Securities and Exchange Law and
any other applicable laws and regulations of Japan.
4. FRANCE
Each of the Dealers, the Issuer and the Guarantor represents and agrees
that, in connection with their initial distribution, it has not offered or
sold and will not offer or sell, directly or indirectly, Notes to the
public in the Republic of France, and has not distributed or caused to be
distributed and will not distribute or cause to be distributed to the
public in the Republic of France, the Offering Circular or any other
offering material relating to the Notes, and that such offers, sales and
distributions have been and shall only be made in France to qualified
investors (investisseurs qualifies) acting for their own account as defined
in, and in accordance with, Article L.411-1 and L.411-2 of the Code
Monetaire et Financier and decret no. 98-880 dated 1st October, 1998.
6. BERMUDA
Each Dealer represents and agrees that it will not invite members of the
public or at all in Bermuda to subscribe for Notes and that it has complied
and will comply with all applicable
28
provisions of the Companies Act, 1981 (as amended) of Bermuda with
respect to anything done by it in relation to the Notes in, from or
otherwise involving Bermuda.
7. GERMANY
Each Dealer represents and agrees that Notes have not been and will not
be offered, sold, promoted or advertised by it in the Federal Republic of
Germany other than in compliance with the German Securities Selling
Prospectus Act (Wertpapierverkaufsprospektgesetz) of 13th December, 1990,
as amended, or any other laws applicable in the Federal Republic of
Germany governing the issue, offering and sale of securities.
8. THE NETHERLANDS
Each Dealer represents and agrees that it has not, directly or indirectly,
offered or sold and will not, directly or indirectly, offer to sell in The
Netherlands any Notes with a denomination of less than (euro)50,000 (or its
foreign currency equivalent) other than to persons who trade or invest in
securities in the conduct of a profession or business (which include banks,
stockbrokers, insurance companies, pension funds, other institutional
investors and finance companies and treasury departments of large
enterprises) unless one of the other exemptions from or exceptions to the
prohibition contained in article 3 of the Dutch Securities Transactions
Supervision Act 1995 ("Wet toezicht effectenverkeer 1995") is applicable
and the conditions attached to such exemption or exception are complied
with.
7. GENERAL
Each Dealer will (to the best of its knowledge and belief) comply with all
applicable laws and regulations in force in any jurisdiction in which it
purchases, offers, sells or delivers Notes or possesses or distributes the
Offering Circular and will obtain any consent, approval or permission
required by it for the purchase, offer, sale or delivery by it of Notes
under the laws and regulations in force in any jurisdiction to which it is
subject or in which it makes such purchases, offers, sales or deliveries
and none of the Issuers, the Guarantor nor any other Dealer shall have
responsibility therefor.
None of the Issuers, the Guarantor nor any of the Dealers represents that
Notes may at any time lawfully be sold in compliance with any applicable
registration or other requirements in any jurisdiction, or pursuant to any
exemption available thereunder, or assumes any responsibility for
facilitating such sale.
With regard to each Tranche, the relevant Dealer will be required to comply
with such other additional restrictions as the relevant Issuer, the
Guarantor and the relevant Dealer shall agree and as shall be set out in
the applicable Pricing Supplement.
29
APPENDIX C
PART I
FORM OF DEALER ACCESSION LETTER - PROGRAM
[Date]
To: CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(the "Issuers")
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
(the "Guarantor")
Attention:
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
U.S.$2,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
We refer to the amended and restated Program agreement dated 27th March, 2002
entered into in respect of the above Euro Medium Term Note Program (the
"Program") and made between the Issuers, the Guarantor and the Dealers party
thereto (which agreement, as amended from time to time, is herein referred to as
the "Program Agreement").
CONDITIONS PRECEDENT
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Program Agreement;
(ii) a copy of the current version all documents referred to in Appendix A of
the Program Agreement;
and have found them to our satisfaction or (in the case of documents referred to
in (ii) above) have waived production of such documents.
30
For the purposes of the Program Agreement our Notice Details are as follows:
(insert name, address, telephone, telex (+ answerback) and attention).
In consideration of appointment by the Issuers and the Guarantor of us as a
Dealer under the Program Agreement we hereby undertake, for the benefit of each
of the Issuers, the Guarantor and the other Dealers, that we will perform and
comply with all the duties and obligations expressed to be assumed by a Dealer
under the Program Agreement.
This letter is governed by, and shall be construed in accordance with, English
law.
Yours faithfully,
[Name of New Dealer]
cc: JPMorgan Chase Bank (Agent)
[names of Dealers at the date of accession]
31
PART II
FORM OF CONFIRMATION LETTER - PROGRAM
[Date]
To: [Name and address of new Dealer]
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
U.S.$2,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
We refer to the amended and restated Program Agreement dated 27th March, 2002
(such agreement, as amended from time to time, the "Program Agreement") entered
into in respect to the above Euro Medium Term Note Program and hereby
acknowledge receipt of your Dealer Accession Letter to us dated [ ].
We hereby confirm that, with effect from the date hereof, you shall become a
party to the Program Agreement in accordance with Clause 11 of the Program
Agreement.
Yours faithfully,
For and on behalf of
CIBA SPECIALTY CHEMICALS CORPORATION
By:
For and on behalf of
CIBA SPECIALTY CHEMICALS PLC
By:
For and on behalf of
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
By:
32
For and on behalf of
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
By:
For and on behalf of
CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
cc: JPMorgan Chase Bank (Agent)
[names of other Dealers at the date of accession]
33
PART III
FORM OF DEALER ACCESSION LETTER - NOTE ISSUE
[DATE]
To: CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
(the "ISSUERS")
and: CIBA SPECIALTY CHEMICALS HOLDING INC.
(the "GUARANTOR")
Attention:
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
U.S.$2,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
We refer to the amended and restated Program Agreement dated 27th March, 2002
entered into in respect of the above Euro Medium Term Note Program (the
"Program") and made between the Issuers, the Guarantor and the Dealers party
thereto (which agreement, as amended from time to time, is herein referred to as
the "Program Agreement").
Conditions Precedent
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Program Agreement;
(ii) a copy of current versions of all documents referred to in Appendix A of
the Program Agreement;
and have found them to our satisfaction or (in the case of documents referred to
in (ii) above) have waived production of such documents.
For the purposes of the Program Agreement our Notice Details are as follows:
34
(insert name, address, telephone, telex (+ answerback) and attention).
In consideration of appointment by the Issuers and the Guarantor of us as a
Dealer in respect of the issue of [ ] Notes due [ ] (the "Issue") under the
Program Agreement we hereby undertake, for the benefit of each of the Issuers,
the Guarantor and each of the other Dealers that in relation to the Issue we
will perform and comply with all the duties and obligations expressed to be
assumed by a Dealer under the Program Agreement.
This letter is governed by, and shall be construed in accordance with, English
law.
Yours faithfully,
[Name of New Dealer]
By:
cc: JPMorgan Chase Bank (Agent)
[names of Dealers at the date of accession]
35
PART IV
FORM OF CONFIRMATION LETTER - NOTE ISSUE
[Date]
To: [Name and address of new Dealer]
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
U.S.$2,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
We refer to the amended and restated Program Agreement dated 27th March, 2002
(such Agreement, as amended from time to time, the "Program Agreement") entered
into in respect to the above Euro Medium Term Note Program and hereby
acknowledge receipt of your Dealer Accession Letter to us dated [ ].
We hereby confirm that, with effect from the date hereof in respect of the issue
of [ ] Notes due [ ] (the "Issue"), you shall become a party to the Program
Agreement in accordance with Clause 11 of the Program Agreement.
Yours faithfully,
CIBA SPECIALTY CHEMICALS CORPORATION
By:
CIBA SPECIALTY CHEMICALS PLC
By:
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
By:
36
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
By:
CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
cc: JPMorgan Chase Bank (Agent)
[names of Dealers at the date of accession]
37
APPENDIX D
LETTER REGARDING INCREASE IN THE NOMINAL AMOUNT
OF THE PROGRAM
[Date]
To: The Dealers and the Listing Agent
(as those expressions are defined
in the amended and restated Program
Agreement dated 27th March, 2002 as
amended from time to time,
(the "PROGRAM AGREEMENT"))
Dear Sirs,
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPECIALTY CHEMICALS PLC
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
U.S.$2,000,000,000 EURO MEDIUM TERM NOTE PROGRAM
We hereby request, pursuant to Clause 12 of the Program Agreement, that the
aggregate nominal amount of the above Program be increased to U.S.$[ ] on and
from [insert date]. We would like to draw your attention to such Clause 12,
under which, should you fail to object in accordance with the provisions set out
in that clause, this increase shall (subject as set out below) take effect on
and from [insert date], whereupon all references in the Program Agreement, the
Agency Agreement, the Deed of Covenant and the Deed of Guarantee will be deemed
amended accordingly. We understand that this increase is subject to the
satisfaction of the conditions set out in Clause 12 of the Program Agreement.
Terms used in this letter have the meanings given to them in the Program
Agreement.
Yours faithfully,
For and on behalf of
CIBA SPECIALTY CHEMICALS CORPORATION
By:
For and on behalf of
CIBA SPECIALTY CHEMICALS PLC
By:
38
For and on behalf of
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
By:
For and on behalf of
CIBA SPECIALTY CHEMICALS EUROFINANCE PLC
By:
For and on behalf of
CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
cc: UBS Warburg
(for distribution to the existing Dealers).
JPMorgan Chase Bank (Agent)
39
APPENDIX E
FORM OF SUBSCRIPTION AGREEMENT
[CURRENCY AND AMOUNT]
[CIBA SPECIALTY CHEMICALS CORPORATION]
[CIBA SPECIALTY CHEMICALS PLC]
[CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH]
[CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.]
[DESCRIPTION OF NOTES]
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
CIBA SPECIALTY CHEMICALS HOLDING INC.
[DATE]
To: [ ]
(the "MANAGERS")
c/o [ ]
(the "LEAD MANAGER")
Dear Sirs,
[CIBA SPECIALTY CHEMICALS CORPORATION] [CIBA SPECIALTY CHEMICALS PLC] [CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH] [CIBA SPECIALTY CHEMICALS
EUROFINANCE LTD.] (the "ISSUER") proposes to issue [CURRENCY AND AMOUNT]
[DESCRIPTION OF NOTES] (the "NOTES") unconditionally and irrevocably guaranteed
by CIBA SPECIALTY CHEMICALS HOLDING INC. (the "GUARANTOR") pursuant to its
U.S.$2,000,000,000 Euro Medium Term Note Program. The terms of the issue shall
be as set out in the form of Pricing Supplement attached to this Agreement as
Annexe A.
This Agreement is supplemental to the amended and restated Program Agreement
(the "PROGRAM AGREEMENT") dated 27th March, 2002 made between CIBA SPECIALTY
CHEMICALS CORPORATION, CIBA SPECIALTY CHEMICALS PLC, CIBA SPECIALITY CHEMICALS
EUROFINANCE LTD. and CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH (together
the "Issuers"), the Guarantor and the Dealers party thereto. All terms with
initial capitals used herein without definition have the meanings given to them
in the Program Agreement.
We wish to record the arrangements agreed between us in relation to the issue:
40
* [1. Conditions Precedent
This Agreement appoints each Manager which is not a party to the Program
Agreement (each a "New Dealer") as a Dealer under the Program Agreement for
the purposes of the issue of the Notes. The Lead Manager confirms that it
is in receipt of the documents referenced below:
(i) a copy of the Program Agreement;
(ii) a copy of all documents referred to in Appendix A of the Program
Agreement; and
(iii) a copy of the Agency Agreement;
and has confirmed with (each of) the New Dealer(s) that it/they has/have
found them to be satisfactory or (in the case of the documents referred to
in (ii)) has/have waived such production.
For the purposes of the Program Agreement the details of the Lead Manager
for service of notices are as follows:
(insert name, address, telephone, telex (# answerback) and attention).
In consideration of the Issuer and the Guarantor appointing the New
Dealer(s) as (a) Dealer(s) in respect of the Notes under the Program
Agreement, each/the New Dealer hereby undertakes, for the benefit of each
of the Issuers, the Guarantor and the other Dealers, that, in relation to
the issue of the Notes, it will perform and comply with all the duties and
obligations expressed to be assumed by a Dealer under the Program
Agreement, a copy of which it acknowledges it has received from the Lead
Manager.]
The Issuer hereby confirms that [each] [the] New Dealer shall be vested
with all authority, rights, powers, duties and obligations of a Dealer in
relation to the issue of Notes as if originally named as a Dealer under the
Program Agreement provided that following the issue of the Temporary Global
Note in respect of the Notes [each] [the] New Dealer shall have no further
such authority, rights, powers, duties and obligations except such as may
have accrued or been incurred prior to, or in connection with, the issue of
such Temporary Global Note and the Notes represented thereby.
2. Subject to the terms and conditions of the Program Agreement and this
Agreement the Issuer hereby agrees to issue the Notes, the Guarantor hereby
agrees to guarantee the Notes and the Managers jointly and severally agree
to purchase the Notes at a subscription price of [ ] per cent. of the
principal amount of the Notes (the "SUBSCRIPTION PRICE"), being the issue
price of [ ] per cent. less a selling commission of [ ] per cent. of such
principal amount and a management and underwriting fee of [ ] per cent. of
such principal amount.
3. The net purchase money in respect of the Notes, namely the sum of [ ]
(representing the Subscription Price, less the amount payable in respect of
the Managers' expenses specified in Clause 4 hereof) will be paid by the
Lead Manager on behalf of the Managers to the Issuer
_________________________
* Delete this paragraph for a Dealer-only syndicate.
41
at [ ] hours (London time) on [ ], or at such other time and/or date as
the Issuer and the Lead Manager on behalf of the Managers may agree (the
"CLOSING DATE") against delivery to a common depositary for Clearstream,
Luxembourg and Euroclear Bank S.A./N.V. as operator of the Euroclear
System, or any successor to the business thereof of a temporary global
note representing the Notes, in the manner contemplated in the Program
Agreement.
4. The Issuer or, failing the Issuer, the Guarantor shall bear and pay all
costs and expenses incurred in or in connection with the printing of the
Notes, this Agreement and the Pricing Supplement prepared in connection
with the issue of the Notes, the listing of the Notes on the [ ] Stock
Exchange and making initial delivery of the Notes. In addition, the Issuer
or, failing the Issuer, the Guarantor agrees to pay to the Lead Manager [ ]
in respect of reasonable legal, travelling, telex, facsimile, telephone,
postage and costs of any publicity agreed in writing by the Issuer or the
Guarantor incurred and to be incurred by the Managers in connection with
the preparation and management of the issue and distribution of the Notes
which sum may be deducted from the Subscription Price as provided in Clause
3 hereof.
5. The obligation of the Managers to purchase the Notes is conditional upon:
(i) the conditions set out in Clause 3(2) (other than that set out in
Clause 3(2)(f)) of the Program Agreement being satisfied as of the
Closing Date and without prejudice to the aforesaid, the Offering
Circular dated [ ] [, as supplemented by [ ],] containing all material
information relating to the assets and liabilities, financial position
and profits and losses of the Issuer [and the Guarantor/Parent] and
nothing having happened or being expected to happen which would
require the Offering Circular [, as so supplemented,] to be [further]
supplemented or updated; and
(ii) the delivery to the Lead Manager on the Closing Date of:
(A) legal opinions addressed to the Managers dated the Closing Date
in such form and with such contents as the Lead Manager, on
behalf of the Managers, may reasonably require [from Freshfields
Bruckhaus ▇▇▇▇▇▇▇▇/Cravath, Swaine & ▇▇▇▇▇/▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Kempe], the legal advisers to the Issuer as to [German/United
States/Bermudan law,] from Homburger, the legal advisers to the
Guarantor as to Swiss law, and from ▇▇▇▇▇ & ▇▇▇▇▇, the legal
advisers to the Managers as to English law;
(B) a certificate dated the Closing Date signed by a duly authorised
officer of each of the Issuer and the Guarantor to the effect
stated in paragraph (i) of this Clause;
(C) a comfort letter dated the Closing Date from the independent
auditors of each of the Issuer and the Guarantor, in such form
and with such content as the Managers may reasonably request; and
(D) [list such other conditions precedent as may be agreed].
If any of the foregoing conditions is not satisfied on or before the
Closing Date, this Agreement shall terminate on such date and the parties
hereto shall be under no further liability arising out of this Agreement
(except for the liability of the Issuer and the Guarantor in
42
relation to expenses as provided in Clause 4 and except for any liability
arising before or in relation to such termination), provided that the
Lead Manager, on behalf of the Managers, may in its discretion waive any
of the aforesaid conditions (other than the conditions precedent
contained in Clause 3(2)(c) of the Program Agreement) or any part of
them.
6. In connection with the distribution of the Notes, the Lead Manager may
over-allot or effect transactions in the open market or otherwise with a
view to stabilising or maintaining the market price of the Notes at levels
other than those which might otherwise prevail in the open market, but in
doing so the Lead Manager shall act as principal and not as agent of the
Issuer. Such stabilising if commenced, may be discontinued at any time. Any
loss resulting from over-allotment and stabilisation shall be borne, and
any net profit arising therefrom shall be retained, by the Lead Manager for
its own account. Such stabilisation shall be done in compliance with all
applicable laws.
7. (a) The Lead Manager, on behalf of the Managers, may, after
consultation with the Issuer and the Guarantor if practicable and by
notice to the Issuer and the Guarantor, terminate this Agreement at
any time prior to payment of the net purchase money to the Issuer if
in the opinion of the Lead Manager there shall have been such a change
in national or international financial, political or economic
conditions or currency exchange rates or exchange controls as would in
the view of the Lead Manager be likely to prejudice materially the
success of the offering and distribution of the Notes (whether in the
primary market or in respect of dealings in the Notes in the secondary
market).
(b) Upon such notice being given, this Agreement shall terminate and no
party shall be under any liability to any other in respect thereof
except for the liability of the Issuer and the Guarantor for the
payment of costs and expenses as provided in Clause 4 of this
Agreement, the obligations of the Managers under Clause 8 of the
Program Agreement and the respective obligations of the parties under
Clause 6 of the Program Agreement.
8. (1) This Agreement shall be governed by, and construed in accordance with,
the laws of England.
(2) A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement, but this does not affect any right or remedy of a
third party which exists or is available apart from that Act.
(3) Each party to this Agreement hereby irrevocably agrees for the
exclusive benefit of the other parties to this Agreement that the
courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and that
accordingly any suit, action or proceedings (together referred to as
"PROCEEDINGS") arising out of or in connection with this Agreement may
be brought in such courts. Each party to this Agreement hereby
irrevocably waives any objection which it may have to the laying of
the venue of any Proceedings in any such courts and any claim that any
such Proceedings have been brought in an inconvenient forum and hereby
further irrevocably agrees that a judgment in any Proceedings brought
in the English courts shall be conclusive and binding upon such party
and may be
43
enforced in the courts of any other jurisdiction (subject to the
laws of the jurisdiction in which enforcement is sought). Nothing
contained herein shall limit any right to take Proceedings against
the Issuer and/or the Guarantor in any other court of competent
jurisdiction (outside the Contracting States, as defined in Section
1(3) of the Civil Jurisdiction and Judgments Act 1982), nor shall
the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether
concurrently or not (subject to the laws of the relevant
jurisdiction). The [Issuer and the] Guarantor hereby appoints [the
Issuer/Ciba Specialty Chemicals PLC] as its agent for service of
process and agrees that, in the event of ceasing so to act or
ceasing to be registered in England, it will appoint another person
as its agent for service of process in England in respect of any
Proceedings.
9. This Agreement may be signed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party
may enter into this Agreement by executing a counterpart.
Please confirm that this letter correctly sets out the arrangements agreed
between us.
Yours faithfully,
For: [Issuer]
By:
For: CIBA SPECIALTY CHEMICALS HOLDING INC.
By: By:
We agree to the foregoing.
For: [
]
By:
44
Annexe A
[Form of Pricing Supplement]
45
APPENDIX F
FORM OF DEED OF COVENANT
THIS DEED OF COVENANT is made on 27th March, 2002 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, 2002 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, 2002 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.
46
(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 (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, 2002 and an executed
copy of the Guarantee has been deposited with and shall be held by the
Agent for the time being for the Notes. A copy of the Guarantee shall be
available for inspection at the office of the Agent for the time being
(being at the date hereof at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇).
(G) This Deed of Covenant amends and restates the amended and restated Deed of
Covenant entered into by Ciba Specialty Chemicals Corporation, Ciba
Specialty Chemicals PLC and Ciba Spezialitatenchemie Holding Deutschland
GmbH dated 30th March, 2001. This Deed of Covenant does not affect any
Notes issued pursuant to the Principal Program Agreement prior to the date
hereof.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. If any Global Note becomes void in accordance with the terms thereof the
relevant Issuer hereby undertakes and covenants with each Relevant Account
Holder (other than when any Relevant Clearing System is an account holder
of any other Relevant Clearing System) that each Relevant Account Holder
shall automatically acquire at the Relevant Time, without the need for any
further action on behalf of any person, against the relevant Issuer all
those rights which such Relevant Account Holder would have had if at the
Relevant Time it held and beneficially owned duly executed and
authenticated Definitive Note(s), Receipts (if appropriate) and Coupons (if
appropriate) in respect of each Underlying Note represented by such Global
Note which such Relevant Account Holder has credited to its securities
account with the Relevant Clearing System at the Relevant Time. The
relevant Issuer's obligation pursuant to this clause shall be a separate
and independent obligation by reference to each Underlying Note which a
Relevant Account Holder has credited to its securities account with the
Relevant Clearing System and the relevant Issuer agrees that a Relevant
Account Holder may assign its rights hereunder in whole or in part.
2. The records of the Relevant Clearing System shall be conclusive evidence of
the identity of the Relevant Account Holders and the number of Underlying
Notes credited to the securities account of each Relevant Account Holder.
For the purposes hereof a statement issued by the Relevant Clearing System
stating:
(i) the name of the Relevant Account Holder to which such statement is
issued; and
47
(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.
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");
48
(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 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
49
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).
(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.
(d) Where the Issuer is Ciba Specialty Chemicals Eurofinance Ltd.:
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 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 Notes; 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 by reason of his having some connection with
Bermuda other than the mere holding or ownership of such Underlying
Note.
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.
50
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇) until all the obligations of each Issuer
hereunder have been discharged in full.
7. Each Issuer hereby acknowledges the right of every Relevant Account Holder
to the production of, and the right of every Relevant Account Holder to
obtain (upon payment of a reasonable charge) a copy of, this Deed, and
further acknowledges and covenants that the obligations binding upon it
contained herein are owed to, and shall be for the account of, each and
every Relevant Account Holder, and that each Relevant Account Holder shall
be entitled severally to enforce the said obligations against the relevant
Issuer.
8. No rights are conferred on any person under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Deed, but this does not
affect any right or remedy of any person which exists or is available apart
from that Act.
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.
51
EXECUTED as a Deed by CIBA )
SPECIALTY CHEMICALS )
CORPORATION )
acting by )
and )
acting under the authority of that company )
in the presence of: )
Witness's
Signature __________________________________
Name _________________________________
Address __________________________________
__________________________________
EXECUTED as a Deed by CIBA )
SPECIALTY CHEMICALS )
PLC )
acting by its attorney(s) )
)
in the presence of: )
Witness's
Signature __________________________________
Name _________________________________
Address __________________________________
__________________________________
52
EXECUTED as a Deed by CIBA )
SPEZIALITATENCHEMIE )
HOLDING DEUTSCHLAND GMBH )
acting by )
and )
acting under the authority of that company )
in the presence of: )
Witness's
Signature __________________________________
Name _________________________________
Address __________________________________
__________________________________
EXECUTED as a Deed under )
Seal by CIBA SPECIALTY CHEMICALS )
EUROFINANCE LTD. )
and SIGNED and DELIVERED as )
a deed on its behalf by )
)
in the presence of: )
Witness's
Signature __________________________________
Name _________________________________
Address __________________________________
__________________________________
53
SIGNATORIES
The Issuers
CIBA SPECIALTY CHEMICALS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Attention: Treasurer
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CIBA SPECIALTY CHEMICALS PLC
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CIBA SPEZIALITATENCHEMIE HOLDING ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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54
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
c/o Reid Management Limited
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PO Box HM1179
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Bermuda
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
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THE GUARANTOR
CIBA SPECIALTY CHEMICALS HOLDING INC.
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Attention: Group Treasurer
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THE DEALERS
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
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Telefax 020 7905 6128
Attention: MTN Trading
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Telefax: 020 7541 2761
Telex: 94015555 DBLN G
Attention: MTN Desk
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Telex: 94012165 GSHH G
Telefax: 020 7774 5711
Attention: Euro Medium Term Note Desk
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Telex: 8954804 MGLTD G
Telefax: 020 7325 8225
Attention: Euro Medium Term Note Desk
Each by its duly authorised signatory: ▇▇▇▇▇ ▇▇▇▇▇▇▇
UBS AG, ACTING THROUGH ITS BUSINESS GROUP UBS WARBURG
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Telefax: 44 20 7568 3349
Attention: MTNs and Private Placements
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CONFORMED COPY
27TH MARCH, 2002
CIBA SPECIALTY CHEMICALS PLC
CIBA SPECIALTY CHEMICALS CORPORATION
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH
CIBA SPECIALTY CHEMICALS EUROFINANCE LTD.
AS ISSUERS
- AND -
CIBA SPECIALTY CHEMICALS HOLDING INC.
AS GUARANTOR
- AND -
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
DEUTSCHE BANK AG LONDON
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UBS AG, ACTING THROUGH ITS BUSINESS GROUP UBS WARBURG
AS DEALERS
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PROGRAM AGREEMENT
IN RESPECT OF A U.S.$2,000,000,000
EURO MEDIUM TERM NOTE PROGRAM
(AMENDED AND RESTATED)
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[▇▇▇▇▇ & OVERY LOGO]
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................2
2. Agreements to Issue and Purchase Notes...............................5
3. Conditions of Issue; Updating........................................6
4. Representations and Warranties.......................................8
5. Undertakings of the Issuers and the Guarantor.......................11
6. Indemnity...........................................................14
7. Authority to Distribute Documents...................................16
8. Dealers' Undertakings...............................................16
9. Fees, Expenses and Stamp Duties.....................................17
10. Termination of Appointment of Dealers...............................18
11. Appointment of New Dealers..........................................18
12. Increase in the Aggregate Nominal Amount of the Program.............19
13. Status of the Arrangers.............................................19
14. Counterparts........................................................19
15. Communications......................................................19
16. Benefit of Agreement................................................20
17. Currency Indemnity..................................................20
18. Calculation Agent...................................................21
19. Stabilisation.......................................................21
20. Contracts (Rights of Third Parties) Act 1999........................21
21. Governing Law and Jurisdiction......................................21
APPENDICES
A. Initial Documentation List..........................................23
B. Selling Restrictions................................................25
C. Part I - Form of Dealer Accession Letter - Program.................29
Part II - Form of Confirmation Letter - Program.....................31
Part III - Form of Dealer Accession Letter - Note Issue.............33
Part IV - Form of Confirmation Letter - Note Issue.................35
D. Letter Regarding Increase in the Nominal Amount of the Program......37
E. Form of Subscription Agreement......................................39
F. Form of Deed of Covenant............................................45
SIGNATORIES..............................................................53
