Exhibit 10.1
DATED AUGUST 19, 2005
Between
CELANESE EUROPE HOLDING GMBH & CO. KG
as the Purchaser
and
PAULSON & CO. INC AND
ARNHOLD AND S. BLEICHROEDER ADVISERS, LLC,
EACH ON BEHALF OF ITS OWN AND WITH RESPECT TO SHARES OWNED BY
THE INVESTMENT FUNDS AND
SEPARATE ACCOUNTS MANAGED BY IT
as the Sellers
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SHARE PURCHASE AND TRANSFER AGREEMENT
AND SETTLEMENT AGREEMENT
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THIS SHARE PURCHASE AND TRANSFER AGREEMENT AND SETTLEMENT AGREEMENT (this
"AGREEMENT") is made on August 19, 2005
BETWEEN:
(1) CELANESE EUROPE HOLDING GMBH & CO. KG, a limited partnership
(Kommanditgesellschaft) organized under the laws of the Federal Republic
of Germany with registered office (Sitz) at Kronberg i.T., registered with
the commercial register of the Local Court (Amtsgericht) Koenigstein,
Germany, under registration number HRA 2970 (the "PURCHASER")
AND
(2) PAULSON & CO. INC., a corporation organized under the laws of the State of
Delaware, with its principal offices at 590 Madison Avenue, New York, NY
10022, USA ("PAULSON"), acting on its own behalf as well as with respect
to the Shares (as defined below) owned by the investment funds and
separate accounts managed by it; and
(3) ARNHOLD AND S. BLEICHROEDER ADVISERS, LLC, a limited liability company
established under the laws of the State of Delaware, with its principal
offices at 1345 Avenue of the Americas, New York, NY 10105, USA ("ASB" and
together with Paulson, the "SELLERS"), acting on its own behalf as well as
with respect to the Shares (as defined below) owned by the investment
funds and separate accounts managed by it.
The Sellers and the Purchaser are also collectively referred to hereinafter as
the "PARTIES" and each individually as a "PARTY".
PREAMBLE:
A. Pursuant to a voluntary public takeover offer (the "TENDER OFFER") the
Purchaser acquired in April 2004 approximately 82.6% of the outstanding
shares in Celanese Aktiengesellschaft, a stock corporation organized under
the laws of the Federal Republic of Germany, with registered office (Sitz)
in Kronberg i.T., Germany, registered with the commercial register of the
Local Court Koenigstein under registration number HRB 5277 (the
"COMPANY").
B. The registered share capital of the Company in the nominal amount of EUR
140,069,354 is divided into 54,790,369 registered shares with no par value
(auf den Namen lautende Stuckaktien) (the "SHARES"). The Shares are
admitted to trading on the official market (Amtlicher Markt) of the
Frankfurt Stock Exchange. The Shares are traded on the Frankfurt Stock
Exchange and through the electronic trading system XETRA under the symbol
"CZZ", under the German Securities Identification Number
(Wertpapierkennnummer) (WKN) 575 300 and under the International
Securities Identification Number (ISIN) DE 0005753008. The Shares were
delisted from the New York Stock Exchange on June 2, 2004.
C. On June 22, 2004, the Purchaser and the Company entered into a domination
and profit and loss transfer agreement (Beherrschungs- und
Gewinnabfuhrungsvertrag) (the "DOMINATION AGREEMENT"). The Domination
Agreement was submitted to a shareholder vote, and approved, at an
extraordinary general meeting of the Company held on July 30 and 31, 2004
(the "EGM"). The Domination Agreement was registered in the commercial
register of the Local Court of Koenigstein im Taunus on August 2, 2004
and, under
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the terms thereof, became operative on October 1, 2004. In connection with
the Domination Agreement, the Purchaser has offered, pursuant to a
mandatory offer required by Section 305(1) of the German Stock Corporation
Act, the minority shareholders (ausstehende Aktionare) of the Company a
"fair cash compensation" (angemessene Barabfindung) in exchange for their
Shares in the amount of EUR 41.92 per Share (the "MANDATORY OFFER"). In
addition, under the Domination Agreement, pursuant to Section 304(1),
sentence 1 of the German Stock Corporation Act, any minority shareholder
who elects not to tender its Shares into the Mandatory Offer and to remain
a shareholder of the Company is entitled to receive a certain guaranteed
fixed annual dividend (Ausgleich) per Share in lieu of any future dividend
payments.
D. Following the EGM, certain minority shareholders of the Company, whose
names are set forth in Annex A (the "ORIGINAL PLAINTIFFS") brought forward
legal actions with the Frankfurt District Court (Landgericht) and
requested the court to set aside the shareholder resolutions passed at the
EGM (collectively, the "ORIGINAL ACTIONS"). Several minority shareholders
have joined the Original Actions via third party interventions in support
of the Original Plaintiffs. The Purchaser has joined the proceedings via a
third party intervention in support of the Company. In September 2004, the
Frankfurt District Court consolidated the Original Actions (file no. 3-05
O 112/04). One minority shareholder, Metropol Vermoegensverwaltungs- und
Grundstuecks-GmbH, Cologne, Germany (the "AVOIDANCE PLAINTIFF" and
together with the Original Plaintiffs, the "PLAINTIFFS"), brought forward
an additional action (file no. 3-05 O 61/05) with the Frankfurt District
Court and requested the court to rule that the shareholder resolutions
passed at the EGM were void (Nichtigkeitsklage) (the "AVOIDANCE
PROCEEDINGS"). In addition, several minority shareholders (including
Paulson and the Plaintiffs) have initiated special award proceedings
(Spruchverfahren) seeking the court's review of the amounts of the fair
cash compensation and the guaranteed fixed annual dividend offered under
the Domination Agreement (collectively, the "AWARD PROCEEDINGS"). In March
2005, the Frankfurt District Court dismissed the motions of all minority
shareholders regarding the initiation of the Award Proceedings as
inadmissible. The ruling of the court is, however, subject to pending
appeals (sofortige Beschwerden) (collectively, the "APPEALS") including
appeals of Paulson and the Plaintiffs with the Frankfurt Higher District
Court (Oberlandesgericht).
E. A ratification resolution (Bestatigungsbeschluss) to ratify the
shareholders' resolutions passed at the EGM was submitted to a shareholder
vote, and approved, at the annual general meeting of the Company held on
May 19 and 20, 2005 (the "AGM"). Following the AGM, several minority
shareholders of the Company (including Paulson and the Plaintiffs) brought
forward legal actions with the Frankfurt District Court against the
shareholders' resolutions passed at the AGM as well, and requested that
the court set aside the ratification resolution (collectively, the
"ADDITIONAL ACTIONS"). In June 2005, the Frankfurt District Court has
suspended the proceedings regarding the Original Actions until a
judicially final and binding decision is rendered with regard to the
Additional Actions and consolidated the Additional Actions (file no. 3-05
O 71/05).
F. In addition to the Original Actions, the Avoidance Action, the Award
Proceedings, the Appeals and the Additional Actions, certain minority
shareholders have instituted the legal proceedings set forth in Annex B
against, among others, the Company and the Purchaser in connection with
the Tender Offer and the Domination Agreement (these proceedings together
with the Original Actions, the Avoidance Action, the Award Proceedings,
the Appeals and the Additional Actions, and together with any and all
other legal proceedings commenced against the Company or the Purchaser or
any of their affiliates before, on or
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after the date hereof relating in any way to the subject matter of any of
the foregoing, the "LEGAL PROCEEDINGS").
G. As of today, Paulson and the investment funds and separate accounts
managed by it own in the aggregate 5,758,299 Shares (the "PAULSON
SHARES"), representing approximately 11.43% of the outstanding shares of
the Company; and ASB and the investment funds and separate accounts
managed by it own in the aggregate 160,000 Shares (the "ASB SHARES" and
together with the Paulson Shares, the "SELLERS' SHARES"), representing
approximately 0.32% of the outstanding Shares of the Company. The Sellers'
Shares are currently held in book entry form within the Clearstream
Banking AG booking system in various securities accounts of the Sellers
and of the investment funds and separate accounts managed by the Sellers.
IT IS AGREED as follows:
1. SUBJECT MATTER OF THIS AGREEMENT; CONDITION PRECEDENT
The subject matter of this Agreement is (i) the sale and transfer of all
Shares held by the Sellers and the investment funds and separate accounts
managed by the Sellers to the Purchaser as well as (ii) the settlement of
all Legal Proceedings, to the extent the Sellers are a party to the Legal
Proceedings; (iii) the agreement by the Sellers not to make future
investments in the Company; and (iv) a general release relating to their
investment in the Company.
2. SALE AND PURCHASE OF SHARES
2.1 Paulson hereby sells to the Purchaser, and the Purchaser hereby purchases
from Paulson, the Paulson Shares; and ASB hereby sells to the Purchaser,
and the Purchaser hereby purchases from ASB, the ASB Shares. For the
avoidance of doubt, the sale and purchase of the Sellers' Shares pursuant
to this Agreement shall include all Shares held, directly or indirectly,
by the Sellers and the investment funds and separate accounts managed by
them, irrespective of whether the description of the Shares and the
Sellers' Shares set forth in recitals B and G of the Preamble or elsewhere
herein is true and complete.
2.2 The sale and purchase of the Sellers' Shares contemplated by this
Agreement shall be made with all rights attached to the Sellers' Shares
(the "ANCILLARY RIGHTS"), including, without limitation, the rights to
receive dividends and all subscription rights (Bezugsrechte). The right to
receive dividends shall include the right to receive, in part or in total,
the guaranteed fixed annual dividend for the current fiscal year 2004/2005
as well as the right to receive dividends for all previous fiscal years of
the Company, to the extent that profits of previous fiscal years have not
been distributed as of the date hereof. The Ancillary Rights shall also
include any right to participate in an increase of the amount of the fair
cash compensation and/or the guaranteed fixed annual payment as a result
of, or in connection with the Award Proceedings or other proceedings or
agreements irrespective of whether such increase occurs through a court
ruling, an agreement amongst the parties to the Award Proceedings or
otherwise.
3. PURCHASE PRICE
3.1 The purchase price for the Sellers' Shares amounts to EUR 51.00 per share
(the "BASE PURCHASE PRICE"). In addition to the Base Purchase Price and as
consideration for the Sellers' undertakings and the settlement set forth
in Section 7 below, the Sellers shall be
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entitled to an additional payment of EUR 2.00 per share (the "ADDITIONAL
PURCHASE PRICE"). Thus, the aggregate purchase price (i.e., Base Purchase
Price and Additional Purchase Price) for the 5,758,299 Shares sold by
Paulson amounts to EUR 305,189,847.00 (the "PAULSON PURCHASE PRICE"); and
the aggregate purchase price (i.e., Base Purchase Price and Additional
Purchase Price) for the 160,000 Shares sold by ASB amounts to EUR
8,480,000.00 (the "ASB PURCHASE PRICE").
3.2 The Purchaser shall pay the Paulson Purchase Price and the ASB Purchase
Price in accordance with the provisions of Section 4 below to bank
accounts of the Sellers specified by the Sellers (the "SELLERS' BANK
ACCOUNTS").
A credit made to the Sellers' Bank Accounts shall have the effect of
discharging the Purchaser in a corresponding amount from its obligation
(schuldbefreiende Wirkung) to pay the Purchase Price to the respective
Seller.
4. TRANSFER OF SHARES
4.1 The Sellers' Shares are hereby assigned and transferred as follows:
(a) Paulson, on its own behalf and on behalf of the investment funds and
separate accounts managed by it, hereby assigns and transfers to the
Purchaser who accepts such transfer and assignment, the Paulson
Shares, which transfer and assignment shall include all Ancillary
Rights attached to the Paulson Shares.
(b) ASB, on its own behalf and on behalf of the investment funds and
separate accounts managed by it, hereby assigns and transfers to the
Purchaser who accepts such transfer and assignment, the ASB Shares,
which transfer and assignment shall include all Ancillary Rights
attached to the ASB Shares.
The assignment and transfer of the Paulson Shares shall, however, be
subject to the condition precedent of complete payment of the Paulson
Purchase Price by the Purchaser to the bank accounts specified by Paulson;
and the assignment and transfer of the ASB Shares shall, however, be
subject to the condition precedent of complete payment of the ASB Purchase
Price by the Purchaser to the bank accounts specified by ASB (each, a
"CONDITION TO TRANSFER OF TITLE").
4.2 In order to ensure transfer of title in the Sellers' Shares, the Parties
shall take the following actions concurrently (Zug um Zug) as soon as the
Sellers have fully complied with their obligations under Section 7.1(a):
(a) The Sellers shall procure that (i) the Paulson Shares are
transferred to the securities deposit of the Purchaser specified by
the Purchaser (the "PURCHASER'S SECURITIES DEPOSIT") by making a
corresponding book-entry transfer (Girosammelgutschrift)
concurrently (Zug um Zug) with the payment by the Purchaser of the
Paulson Purchase Price into the Paulson bank accounts; and (ii) the
ASB Shares are transferred to the Purchaser's Securities Deposit by
making a corresponding book-entry transfer (Girosammelgutschrift)
concurrently with the payment by the Purchaser of the ASB Purchase
Price into the ASB bank accounts.
(b) The Purchaser shall irrevocably instruct its bank in writing to (i)
transfer the Paulson Purchase Price from its cash account with its
bank to the Paulson bank accounts free of any bank charges, by wire
transfer in immediately available funds in Euro concurrently with
the transfer of the Paulson shares to the Purchaser's Securities
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Deposit; and (ii) transfer the ASB Purchase Price from its cash
account with its bank to the ASB bank accounts free of any bank
charges, by wire transfer in immediately available funds in Euro
concurrently with the transfer of the ASB shares to the Purchaser's
Securities Deposit.
(c) The Parties shall take any other action, make any other declaration
and execute any such document which is required or which the
Purchaser reasonably requests to be executed in order to transfer
title in the Sellers' Shares to the Purchaser.
4.3 The Parties agree that, from the execution hereof and until the occurrence
of the transfer of the Sellers' Shares to the Purchaser's Securities
Deposit by way of book entry transfer, the Sellers shall hold the Sellers'
Shares in custody for the Purchaser, free of any charges or costs.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each Seller hereby represents and warrants severally by way of an
independent guarantee (selbstandiges Garantieversprechen) pursuant to
Section 311(1) German Civil Code (Burgerliches Gesetzbuch ), except as
otherwise is expressly provided for herein, as of the date hereof and, if
different, as of the date when the transfer of the Shares pursuant to
Section 4 above becomes effective, as follows:
(a) Paulson represents and warrants that it is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware. ASB represents and warrants that it is a
limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Each Seller represents and warrants that it has all requisite power
and authority to execute and deliver this Agreement and to perform
its obligations hereunder and to consummate the transactions
contemplated hereby. Each Seller represents and warrants that the
execution and delivery of this Agreement, the performance of such
Seller's obligations hereunder and the consummation of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate and other proceedings on the
part of the respective Seller. Each Seller represents and warrants
that this Agreement has been duly executed and delivered by such
Seller, and assuming the due execution hereof by the Purchaser, this
Agreement constitutes the legal, valid and binding obligation of
such Seller in accordance with its terms.
(c) Each Seller represents and warrants that it or the investment funds
and separate accounts managed by it have good and valid title to the
Sellers' Shares sold and to be transferred by such Seller, free and
clear of any liens, claims, encumbrances, security interests,
options, pre-emptive, drag-along or tag-along rights, rights of
first refusal or first offer, charges or restrictions of any kind
(collectively, "LIENS"). Each of the Sellers represents and warrants
that upon book-entry of the transfer of such Seller's Shares in the
Purchaser's Security Deposit, good and valid title to such Seller's
Shares sold and to be transferred by such Seller will pass to the
Purchaser, free and clear of any Liens, except for Liens arising
from acts of the Purchaser.
5.2 The Purchaser hereby represents and warrants by way of an independent
guarantee (selbstandiges Garantieversprechen) pursuant to Section 311(1)
German Civil Code (Burgerliches Gesetzbuch), except as otherwise is
expressly provided for herein, as of the
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date hereof and, if different, as of the date when the transfer of the
Shares pursuant to Section 4 above becomes effective, as follows:
(a) The Purchaser represents and warrants that it is a limited
partnership (Kommanditgesellschaft) organized, validly existing and
in good standing under the laws of the Federal Republic of Germany.
(b) The Purchaser represents and warrants that it has all requisite
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The Purchaser represents and warrants that the
execution and delivery of this Agreement, the performance of its
obligations hereunder and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate and other proceedings on its part. The Purchaser
represents and warrants that this Agreement has been duly executed
and delivered by it, and assuming the due execution hereof by the
Sellers, this Agreement constitutes the legal, valid and binding
obligation of the Purchaser in accordance with its terms.
6. REMEDIES
6.1 If it becomes apparent that one or several of the representations and
warranties given by the Sellers in this Agreement are not accurate or
incomplete or in case of a breach of any of the other obligations of the
Sellers under this Agreement, then the Purchaser may at its sole
discretion request from the Sellers - who shall be liable for their
respective obligations severally (teilschuldnerisch) - either
(a) that the respective Seller put the Purchaser into the position the
Purchaser would be in had the relevant representations and
warranties been correct and complete or the relevant obligation not
been breached, as the case may be; or
(b) compensation for the damages (Schadensersatz wegen Nichterfullung)
incurred by the Purchaser because of the inaccuracy or
incompleteness of the relevant representations and warranties or the
breach of the relevant obligation, as the case may be, provided,
however, that the Purchaser shall only be entitled to be compensated
for damages after (i) the Purchaser has granted the respective
Seller a period of at least 10 calendar days in which to bring about
the position the Purchaser would be in had the relevant
representations and warranties been correct and complete or the
relevant obligation not been breached, as the case may be, (each, a
"RECTIFICATION") and the respective Seller fails to do so within
said time period or (ii) if Rectification is not possible or
sufficient.
6.2 If it becomes apparent that one or several of the representations and
warranties given by the Purchaser in this Agreement are not accurate or
incomplete or in case of a breach of any of the other obligations of the
Purchaser under this Agreement, then the Sellers may at their sole
discretion request from the Purchaser either
(a) that the Purchaser put the Sellers into the position the Sellers
would be in had the relevant representations and warranties been
correct and complete or the relevant obligation not been breached,
as the case may be; or
(b) compensation for the damages (Schadensersatz wegen Nichterfullung)
incurred by the Sellers because of the inaccuracy or incompleteness
of the relevant representations and warranties or the breach of the
relevant obligation, as the case
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may be, provided, however, that the Sellers shall only be entitled
to be compensated for damages after (i) the Sellers have granted the
Purchaser a period of at least 10 calendar days in which to bring
about the position the Sellers would be in had the relevant
representations and warranties been correct and complete or the
relevant obligation not been breached, as the case may be, (each, a
"RECTIFICATION") and the Purchaser fails to do so within said time
period or (ii) if Rectification is not possible or sufficient.
6.3 Except as otherwise provided for in this Agreement, any claim by the
Purchaser or the Sellers, as the case may be, based on the incorrectness
or incompleteness of the representations and warranties shall become
time-barred (verjahrt) on December 31, 2008. With respect to all other
claims of the Purchaser against the Sellers or the Sellers against the
Purchaser, as the case may be, and except as otherwise expressly provided
for in this Agreement, the statutory limitation periods shall apply. With
respect to the suspension (Hemmung) and interruption (Neubeginn) of the
statute of limitations time periods set forth herein, the statutory regime
applies.
6.4 Except as otherwise provided for in this Agreement and legally
permissible, any claims of the Purchaser relating to avoidance
(Anfechtung), rescission (Rucktritt) and the reduction of the Purchase
Price (Minderung), as well as claims based on breach of pre-contractual
duty (culpa in contrahendo, Section 311(2) BGB) shall be excluded, except
to the extent such claims are the result of gross negligence or willful
misconduct on the part of the Sellers.
7. SELLERS' UNDERTAKINGS; SETTLEMENT
7.1 With respect to the purchase and acquisition of the Sellers' Shares by the
Purchaser, the Sellers are prepared to accept the shareholders'
resolutions passed at the EGM and the AGM and to acknowledge the legal
effectiveness of the Domination Agreement. Therefore, the Sellers
irrevocably undertake vis-a-vis the Purchaser and the Company (echter
Vertrag zugunsten Dritter) to take the following actions without delay and
hereby irrevocably makes the following declarations, as the case may be:
(a) Each of the Sellers shall, and shall procure that its affiliates,
their respective past and current employees, officers, directors,
representatives, agents, assigns, successors, predecessors, parents,
subsidiaries, investors and shareholders, except to the extent such
investors and shareholders are not acting with respect to an
investment in such Sellers' investment funds and separate accounts
(the "RELATED PARTIES"), irrevocably withdraw and abandon all
actions, applications and appeals (Klage- bzw. Antragsrucknahme;
Rucknahme von Rechtsmitteln) it brought forward in connection with
the Tender Offer and the Domination Agreement, including in
connection with the Legal Proceedings; and the Sellers hereby
irrevocably waive the respective causes of action (Verzicht auf die
geltend gemachten Anspruche).
(b) Each Seller on its own behalf and on behalf of its Related Parties
hereby irrevocably waives any objections it might have against the
legal effectiveness and validity or the lawfulness of the
shareholders' resolutions passed at the EGM and the AGM, the
Domination Agreement and the Tender Offer as well as any action
taken under or in connection with the Domination Agreement and the
Tender Offer. Each Seller shall take any action or make any
additional declaration which the Purchaser or the Company reasonably
requests from such Seller to maintain the legal effectiveness and
registration of the Domination Agreement.
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(c) Each of the Sellers hereby acknowledges the effectiveness, validity
and the lawfulness of the shareholders' resolutions passed at the
EGM and the AGM, the Domination Agreement and the Tender Offer as
well as any action taken under or in connection with the Domination
Agreement and the Tender Offer. Each Seller shall, and shall procure
that its Related Parties, refrain from taking any action (either in
court or out of court) to challenge directly or indirectly the legal
effectiveness and validity or the lawfulness of the shareholders'
resolutions passed at the EGM and the AGM, the Domination Agreement
and the Tender Offer as well as any action taken under or in
connection with the Domination Agreement and the Tender Offer; each
of the Sellers shall, and shall procure that its Related Parties,
further refrain from initiating any other legal proceedings of
whatever nature (including award proceedings), in any court or
tribunal under the laws of any nation, state or territory, based on
the alleged ineffectiveness, invalidity or unlawfulness of the
shareholders' resolutions passed at the EGM and the AGM, the
Domination Agreement and the Tender Offer as well as any action
taken under or in connection with the Domination Agreement and the
Tender Offer. Each of the Sellers shall, and shall procure that its
Related Parties, also refrain from directly or indirectly supporting
or encouraging any other person to take or to continue any such
proceedings. In particular, each of the Sellers shall, and shall
procure that its Related Parties, refrain from taking any action in
connection with, and shall not directly or indirectly support any
(existing or former) minority shareholder of the Company or any
other person in connection with the Legal Proceedings or any other
legal proceedings relating to the shareholders' resolutions passed
at the EGM and the AGM, the Domination Agreement and the Tender
Offer as well as any action taken under or in connection with the
Domination Agreement and the Tender Offer. Each of the Sellers
shall, and shall procure that its Related Parties, not make
available any work product or other documentation prepared by
itself, its affiliates or its former and present advisors (including
legal advisors, accountants and financial advisors) related to or
otherwise relevant for the Legal Proceedings to any other person.
(d) Each of the Sellers shall, and shall procure that its Related
Parties, refrain from acquiring, directly or indirectly, any Shares
or any other investment in the Company and shall, and shall procure
that its Related Parties, not hold or otherwise control directly or
indirectly any Shares or other investment in the Company in the
future.
(e) Without limiting the generality of the foregoing, each of the
Sellers shall, and shall procure that its Related Parties, refrain
from taking any action (either in court or out of court) to
challenge directly or indirectly any shareholders' resolutions or
corporate decisions of the Company or to initiate any legal
proceedings of whatever nature (including award proceedings) , in
any court or tribunal under the laws of any nation, state or
territory, in connection with such shareholders' resolutions or
corporate decisions including, without limitation, in connection
with an amendment of the Company's articles of association, a
delisting of the Company, a squeeze-out or a conversion of the
Company or any other type of restructuring of the Company (each, a
"FUTURE TRANSACTION"). The Sellers shall also refrain, and shall
procure that its Related Parties, from directly or indirectly
supporting or encouraging any other person to take any action
(either in court or out of court) to challenge or to continue to
challenge, as the case may be, the legal effectiveness, validity or
lawfulness of a Future Transaction or to initiate any legal
proceedings of whatever nature (including award proceedings), in any
court or tribunal under the laws of any nation, state or territory,
in this connection.
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7.2 Upon withdrawal and abandonment by the Sellers of all actions and
applications in accordance with Section 7.1(a), the Purchaser or the
Company (as the case may be) shall, with respect to each such action,
application and appeal, as the case may be, waive the initiation of
proceedings regarding the determination of legal fees (Verzicht auf die
Einleitung eines Kostenfestsetzungsverfahrens) with respect to the
Sellers. The Purchaser and the Company will, however, not reimburse the
Sellers for any costs, in particular lawyers', accountants' and other
consultants' fees, incurred by the Sellers through such actions and
applications or proceedings or the preparation thereof and the Sellers
hereby irrevocably waive any claims in this respect.
7.3 Upon consummation of the sale and purchase of the Sellers' Shares in
accordance with Section 4 above, all claims of the Sellers arising from
and in connection with the Tender Offer and the Domination Agreement or
any action taken under or in connection with the Domination Agreement and
the Tender Offer are, except for the Parties' rights and obligations under
this Agreement, settled (erledigt). In addition, each of the Sellers on
behalf of itself and its Related Parties hereby irrevocably waives any and
all actual or potential claims whatsoever (whether or not relating to the
subject matter of the current Legal Proceedings) arising out of, or
relating to the transactions or matters referred to directly or indirectly
in this Agreement that such Seller has, or in the future may have, against
the Purchaser, the Company or any of the Purchaser's or the Company's
past, current and future Related Parties under the laws of any nation,
state or territory. The Purchaser hereby accepts such waiver.
8. PURCHASER'S UNDERTAKINGS; INCREASE OF FAIR CASH COMPENSATION
8.1 With respect to the sale and transfer of the Sellers' Shares by the
Sellers and the settlement between the Parties in accordance with Section
7 above, the Purchaser undertakes vis-a-vis the Sellers, subject to
compliance with applicable law, to increase the fair cash compensation
(Abfindung) under the Mandatory Offer of EUR 41.92 per Share resolved upon
during the AGM (the "ORIGINAL CASH COMPENSATION") by an amount of EUR 9.08
per Share (the "ADDITIONAL CASH COMPENSATION") up to an aggregate amount
of EUR 51.00 per Share for all minority shareholders that accept the
Mandatory Offer on or prior to September 29, 2005, provided, however, that
a minority shareholder shall only be entitled to the Additional Cash
Compensation if such shareholder irrevocably declares by signing a waiver
declaration the form of which is attached as Annex C that such shareholder
(i) has not filed or has withdrawn (as the case may be), and will not
file, an application for the initiation of award proceedings, and
irrevocably waives any and all rights to initiate and carry out award
proceedings in connection with the Domination Agreement; (ii) has not
adhered, and will not adhere, to applications and has not, or will not,
facilitate award proceedings in connection with the Domination Agreement
in any other way, whether directly or indirectly; and (iii) irrevocably
waives any and all rights to participate in an increase of the amount of
the fair cash compensation and/or the guaranteed fixed annual payment as a
result of, or in connection with the Award Proceedings or other
proceedings or agreements irrespective of whether such increase occurs
through a court ruling, an agreement amongst the parties or otherwise.
Minority shareholders who accept the Mandatory Offer after September 29,
2005 shall not be entitled to receive the Additional Cash Compensation.
8.2 Notwithstanding the foregoing, for the avoidance of doubt and as a matter
of utmost precaution the increase of the fair cash compensation under the
Mandatory Offer shall be structured in a manner that, if the declarations
described in the proviso to Section 8.1 above
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are not binding upon minority shareholders and the Original Cash
Compensation is increased as a result of the Award Proceedings, other
proceedings or agreements - irrespective of whether such increase occurs
through a court ruling, an agreement amongst the parties to the relevant
proceedings or otherwise - (the "COMPENSATION INCREASE"), the Additional
Cash Compensation is to be credited against such Compensation Increase.
Thus, the Additional Cash Compensation shall be deemed to be a prepayment
on such Compensation Increase.
8.3 As long as the Purchaser complies with Sections 8.1 and 8.2, the
undertakings of the Purchaser set forth in this Section 8 shall not
prevent the Purchaser to enter into separate transactions with one,
several or all minority shareholders and/or their representatives on terms
and conditions deviating from the terms and conditions provided for in
this Section 8.
9. CONTINUED COOPERATION, CONFIDENTIALITY, PRESS RELEASES
9.1 The Parties agree to co-operate fully after the date hereof in order to
consummate all the transactions intended by and/or envisaged in this
Agreement. Each Party shall take such further actions, make such
additional declarations and execute such documents as are necessary or, in
the reasonable view of the Purchaser, appropriate to consummate the
transactions intended by and/or contemplated in this Agreement.
9.2 The Parties shall treat the existence of this Agreement and its contents
strictly confidential and shall make no public statements whatsoever
concerning the existence of this Agreement and its contents.
Notwithstanding the foregoing, it is acknowledged and agreed that (i) the
Company and its affiliates may refer to this Agreement and describe its
contents if and to the extent so required in order to implement the
undertakings of the Purchaser set forth in Section 8 or by statutory law,
regulation or order of a court, administrative agency or any other public
authority, including, without limitation, in Form 8-K, amendments to its
Schedule 13D, Schedule 13E-3, Form TO and other filings made pursuant to
the U.S. Securities Exchange Act of 1934, as amended or the U.S.
Securities Act of 1933, as amended; and (ii) each of the Sellers may refer
to this Agreement and describe its contents to its shareholders and
investors in accordance with past practice.
9.3 Upon execution of this Agreement, the Parties shall agree on the content
and form of a press release with regard to the transactions and other
agreements set forth herein. The Sellers shall not unreasonably withhold
their consent to such or any other press releases prepared by the
Purchaser and/or the Company. Until such press release is disseminated,
the Sellers shall not communicate in any way with the press or any other
media regarding this Agreement and the transactions contemplated hereby.
In response to any unsolicited inquiry by the press or any other media
regarding this Agreement and the transactions contemplated hereby, the
Parties shall decline to comment. Following the dissemination of the press
release, the Parties' only response to unsolicited inquiries by the press
or any other media regarding the subject matter of this Agreement shall be
that the transactions contemplated by this Agreement represent a fair
resolution amongst the Parties with respect to the subject matter of this
Agreement. Notwithstanding the foregoing, it is acknowledged and agreed
that no Party shall make any adverse statements to the press or any other
media about any other Party with respect to the subject matter of this
Agreement.
10. ASSIGNMENT
None of the Sellers may not transfer any rights and obligations under or
in connection with this Agreement without prior written consent of the
Purchaser. The Purchaser has the right
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to only transfer its rights and obligations under this Agreement in whole
or in part to one or more enterprises controlled by the Purchaser (each, a
"TRANSFEREE") by way of assignment and assumption of this Agreement
(Vertragsubernahme) (a "TRANSFER OF CONTRACT"). Upon the Transfer of
Contract coming into effect, the Transferee fully assumes the contractual
position of the Purchaser under this Agreement. The Sellers hereby grant
its irrevocable consent to any Transfer of Contract. The Transfer of
Contract shall become legally effective as of the receipt (Zugang) by the
Sellers of a written declaration made by the Purchaser and the Transferee
that a Transfer of Contract has occurred.
11. LANGUAGE
This Agreement is made in, and shall be construed in accordance with, the
English language. In the event of a conflict between English terms and
German terms immediately following in italics and in parenthesis in this
Agreement, the German terms shall prevail.
12. APPLICABLE LAW, JURISDICTION
12.1 This Agreement shall be governed by and interpreted exclusively in
accordance with the laws of the Federal Republic of Germany with the
exclusion of its conflict-of-laws provisions and the Convention on
Contracts for the International Sale of Goods.
12.2 Frankfurt am Main, Germany shall be the exclusive place of jurisdiction
for all disputes arising out of or in connection with this Agreement,
provided, however, that the Purchaser may commence legal proceedings
against the Sellers at any court that is competent (zustandig) for such
proceedings.
13. FEES AND EXPENSES
Except as otherwise specifically set forth in this Agreement, the Parties
hereto shall bear their respective expenses incurred with the preparation,
execution and performance of this Agreement and the transactions
contemplated therein, including all fees and expenses of their advisors
and all fees and expenses incurred by each Party in connection with the
Legal Proceedings.
14. AMENDMENTS
Any amendment or addition to this Agreement must be executed in writing,
unless a more stringent form is required. This also applies to the
deletion or amendment of this clause.
15. ENTIRE AGREEMENT
This Agreement sets out the entire agreement and understanding between the
Parties with respect to the subject matter hereof and supersedes any and
all earlier and current agreements, either orally or in writing, between
the Parties.
16. SEVERABILITY
If one of the provisions of this Agreement is or becomes invalid or
unimplementable, this shall not affect the validity of the remaining
provisions. The Parties shall modify to the extent necessary or replace
the invalid or unimplementable provision so that the effect of the
modified or new provision corresponds as closely as possible to the
intended effect of the invalid or unimplementable provision. In the event
of an unintended omission in this
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Agreement, a provision shall be deemed agreed between the Parties which
corresponds, on the basis of the purpose and the meaning of this Agreement
and the Parties' intention, as closely as possible to the provision the
Parties would have agreed upon had the Parties considered the matter at
the outset.
17. NOTICES, COMMUNICATION, EXERCISE OF RIGHTS
17.1 Any notice or other communication under this Agreement shall be effected
in the English language and in writing and shall be delivered personally
against confirmation of receipt or sent by "registered mail return receipt
requested" or by an internationally recognized courier service or
transmitted by facsimile (followed by confirmation delivered by
"registered mail return receipt requested" or by an internationally
recognized courier service) to the Parties at the followings addresses:
If to the Sellers:
Paulson & Co. Inc.
590 Madison Avenue
New York, NY 10022
USA
attn. General Counsel
Fax no. +1 212 977 9505,
and
Arnhold and S. Bleichroeder Advisers, LLC
1345 Avenue of the Americas
New York, NY 10105
USA
attn.: General Counsel
Fax no. +1 212 698 3271,
with a copy to:
Linklaters Oppenhoff & Radler
Dr. Hans-Ulrich Wilsing
Borsenplatz 1
50667 Koln
Germany
Fax no. +49 221 2091 435.
If to the Purchaser:
Celanese Europe Holding GmbH & Co. KG
Frankfurter Strasse 111
61476 Kronberg i.T.
Germany
attn.: Management Board
Fax no. + +49 69 305 82731 ,
- 13 -
with a copy to:
Gleiss Lutz
Dr. Gerhard Wirth and Dr. Jan M. Bauer
Maybachstrasse 6
70469 Stuttgart
Germany
Fax no. +49 711 855 096,
and a copy to
Simpson Thacher & Bartlett LLP
William R. Dougherty
425 Lexington Avenue
New York, NY 10017
USA
Fax no. +1 212 455 2502.
The Sellers jointly on the one hand and the Purchaser on the other hand
may change the addresses and fax numbers set forth above by giving a
corresponding notice in accordance with this Section 17.1 indicating the
new address and/or fax number, as the case may be, to which notices under
this Agreement shall be delivered, provided, however, that such notice or
a change of address shall be effective only upon receipt thereof.
17.2 Any amendments, consents, waivers, statements, declarations or notices of
the Sellers under or in connection with this Agreement shall be validly
made or given if made or given by Paulson. on behalf of all Sellers and
Sellers hereby authorize Paulson to act in their name and on their behalf
in making any and all such amendments, consents, waivers, statements,
declarations and notices. The same shall apply to the exercise of any
rights by the Sellers under or in connection with this Agreement.
[Signature Page to Follow.]
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This Agreement is signed in New York, USA, on August 19, 2005 by and on behalf
of the Parties as follows:
Paulson & Co. Inc.:
By: __________________________ By: __________________________
Name: Name:
Title: Title:
Arnhold and S. Bleichroeder Advisers, LLC:
By: __________________________ By: __________________________
Name: Name:
Title: Title:
Celanese Europe Holding GmbH & Co. KG
By: Its general partner
Celanese Europe Management GmbH:
By: __________________________ By: __________________________
Name: Name:
Title: Title:
-15-
ANNEX A
NAMES OF ORIGINAL PLAINTIFFS
- Richard Mayer
- Jochen Knoesel
- Allerthal Werke AG and Christa Gotz
- Carthago Value Invest AG
- Prof. Dr. Ekkehard Wenger
- Jens-Uwe Penquitt & Claus Deininger Vermogensverwaltung GbR
- Dr. Leonhard Knoll
- B.E.M. Borseninformations- und Effektenmanagement GmbH
- Protagon Capital GmbH
-16-
ANNEX B
OTHER LEGAL PROCEEDINGS
I. TENDER OFFER PROCEEDINGS (ANFECHTUNG DES AKTIENKAUFS IM RAHMEN DES
UBERNAHMEVERFAHRENS)
FILE NUMBER FILE NUMBER
PLAINTIFF DEFENDANT (FIRST INSTANCE) (COURT OF APPEAL)
Richard Mayer - Celanese Europe Holding 3-06 O 181/04 5 U 131/05
GmbH & Co. KG
- Claudio Sonder
II. PUBLIC REGISTER PROCEEDINGS (AMTSLOSCHUNGSVERFAHREN)
1. PUBLIC REGISTER PROCEEDINGS WITH THE KONIGSTEIN LOCAL COURT (AMTSGERICHT)
PLAINTIFFS DEFENDANT FILE NUMBER
Richard Mayer Celanese AG 80 HRB 5277
OCP Obay Capital Pool Vermogens- Celanese AG 80 HRB 5277
verwaltungsgesellschaft mbH
and Protagon Capital GmbH
2. PUBLIC REGISTER PROCEEDINGS WITH THE FRANKFURT DISTRICT COURT (LANDGERICHT)
FILE NUMBER FILE NUMBER
PLAINTIFF DEFENDANT (FIRST INSTANCE) (COURT OF APPEAL)
Richard Mayer Celanese AG 3-16 T 25/04 20 W 425/04
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ANNEX C
WAIVER LETTER (GERMAN VERSION)
VERZICHTSERKLARUNG
von _____________________________________, Wohnort/Sitz in ____________________,
_______________________________________________________________________________:
Mir/der von mir vertretenen Gesellschaft
- gehoren _______ Aktien der Celanese AG, die ich im Rahmen des
Beherrschungs- und Gewinnabfuhrungsvertrags gegen Zahlung der
festgelegten Abfindung einreiche;
- gehorten _______Aktien der Celanese AG, die ich im Rahmen des
Beherrschungs- und Gewinnabfuhrungsvertrags gegen Zahlung der
festgelegten Abfindung bereits eingereicht habe.
1. Ich erklare gegenuber Celanese Europe Holding GmbH & Co. KG, dass ich/die
von mir vertretene Gesellschaft im Zusammenhang mit dem Beherrschungs- und
Gewinnabfuhrungsvertrag vom 22. Juni 2004
- keinen Antrag auf Einleitung eines Spruchverfahrens gemaB Section
1 Nr. 1 Spruchverfahrensgesetz gestellt habe oder stellen werde oder
einen bereits gestellten Antrag unwiderruflich und rechtsverbindlich
zuruckgenommen habe und dass ich auf die Einleitung und Durchfuhrung
eines Spruchverfahrens zur Bestimmung der angemessenen Barabfindung im
Zusammenhang mit dem Ubertragungsbeschluss verzichte;
- Antragen nicht beitreten werde und ein Spruchverfahren
gemaB Section 1 Nr. 1 Spruchverfahrensgesetz auch nicht in
sonstiger Weise unmittelbar oder mittelbar fordern werde;
-18-
- auf eine in einem Spruchverfahren gemaB Section 1 Nr. 1
Spruchverfahrensgesetz gerichtlich festgesetzte Abfindung oder zur
Beendigung eines solchen Spruchverfahrens vereinbarte Abfindung
verzichte.
_______________, den ______________ 2005
___________________________________
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