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CELANESE AG
[________] SHARES
(NO PAR VALUE PER SHARE)
REDISTRIBUTION AGREEMENT
October __, 1999
CREDIT SUISSE FIRST BOSTON DRESDNER BANK AG
(EUROPE) LIMITED Global Corporate Finance
One Cabot Square Transaction Services
Xxxxxx X00 0XX 60301 Frankfurt am Main,
United Kingdom Germany
1. Introductory. Celanese AG, a company existing under the laws of
Germany (the "Company") became an independent company in a demerger from Hoechst
Aktiengesellschaft ("Hoechst"), on or about October 22, 1999 (the "Demerger").
Pursuant to the Demerger, Hoechst shareholders will receive all of Celanese AG's
outstanding shares, no par value per share (the "Shares"). The Company has
retained the redistribution managers named in Schedule A hereto (the
"Redistribution Managers"), including Credit Suisse First Boston (Europe)
Limited ("CSFB") and Dresdner Bank AG ("DB" and, together with CSFB, the "Joint
Global Co-ordinators and Bookrunners"), each of whom is a party to this
Agreement, to procure purchasers for the Shares that Hoechst shareholders or
holders of Hoechst American Depositary Shares (the "Selling Shareholders") will
receive in the Demerger and elect to sell ("Redistribution Shares") through the
Redistribution Managers (the "Redistribution"). The Redistribution will occur in
a public offering in the United States that is registered under the Securities
Act of 1933, as amended (the "Act") and outside the United States in reliance on
Regulation S under the Act to persons other than U.S. Persons as defined in
Regulation S. The Redistribution Shares to be sold as part of the Redistribution
in Germany will be sold in a public offering under German law, and in the rest
of the world in private offerings. The Company hereby agrees with the several
Redistribution Managers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Redistribution Managers
that:
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(a) The Company has prepared and filed (i) with the Frankfurt
Stock Exchange (the "FSE") a German selling and listing prospectus
relating to the Redistribution Shares and the Shares; and (ii) with
the Securities and Exchange Commission (the "Commission") a
registration statement on Form F-1 (Registration No. 333-87889)
covering the registration under the Act of the Redistribution Shares
being sold in the United States, including the related preliminary
prospectus, or prospectuses, and either (A) has prepared and proposes
to file, prior to the effective date of such registration statement
(the "Effective Time"), an amendment to such registration statement,
including a final prospectus, promptly after execution and delivery of
this Agreement or (B) if the Company has elected to rely upon Rule
430A ("Rule 430A") of the rules and regulations of the Commission
under the Act (the "Rules and Regulations"), will prepare and file a
prospectus, in accordance with the provisions of Rule 430A and Rule
424(b) ("Rule 424(b)") of the Rules and Regulations. The information,
if any, included in such prospectus that was omitted from the
prospectus included in such registration statement at the Effective
Time but that is deemed, pursuant to paragraph (b) of Rule 430A, to be
part of such registration statement at the Effective Time is referred
to herein as the "Rule 430A Information." Each prospectus used before
the Effective Time, and any prospectus that omits the Rule 430A
Information that is used after the Effective Time and prior to the
execution and delivery of this Agreement, is herein called a
"Preliminary Prospectus." Such registration statement, including the
exhibits thereto, as amended at the Effective Time and including the
Rule 430A Information, if applicable, is herein called the
"Registration Statement." The prospectus included in the Registration
Statement, including the Rule 430A Information, if applicable, is
herein called the "U.S. Prospectus," any preliminary U.S. Prospectus
is call "Preliminary U.S. Prospectus," the form of selling and listing
prospectus relating to the Redistribution Shares and the Shares filed
with the FSE is herein called the "German Prospectus," and the form of
prospectus relating to private offerings in the rest of the world is
herein called the "International Prospectus," except that, if the
final prospectus first furnished to the Redistribution Managers after
the execution of this Agreement for use in connection with the
offering of the Redistribution Shares differs from (i) the prospectus
included in the Registration Statement (whether or not such prospectus
is required to be filed pursuant to Rule 424(b)); or (ii) an earlier
dated German Prospectus or International Prospectus, the terms "U.S.
Prospectus," "German Prospectus," and "International Prospectus,"
shall refer to the final version of each of such prospectuses first
furnished to the Redistribution Managers after the execution of this
Agreement for such use. In all cases, the term "Preliminary
Prospectus" shall collectively refer to any preliminary U.S.
Prospectus (the "U.S. Preliminary Prospectus"), any preliminary German
Prospectus (the "German Preliminary Prospectus") and any preliminary
International Prospectus (the "International Preliminary Prospectus").
In all cases, the term "Prospectus" shall collectively refer to the
final U.S. Prospectus, final German Prospectus and final International
Prospectus and any amendments or supplements thereto.
(b) At the Effective Time, and at all times subsequent thereto up
to the Closing Date (as defined in Section 4), (i) the Registration
Statement and any
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amendments thereto will comply in all material respects with the
requirements of the Act and the Rules and Regulations thereunder; (ii)
neither the Registration Statement nor any amendment thereto will
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iii) neither the Prospectus
nor any amendment or supplement thereto will include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
this representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Redistribution Manager expressly for use in the Registration Statement
or the Prospectus.
(c) To the best of the Company's knowledge, after consultation
with the Commission`s staff and oral confirmation from CT Corporation
System, as agent for service of process, no stop order suspending the
effectiveness of the Registration Statement is in effect (if it has
been declared effective), and no proceedings for such purpose are
pending before or threatened by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
(d) The Company has been duly organized and is validly existing
as a corporation under the laws of Germany, with power and authority
to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except such failures to be so
qualified as would not, individually or in the aggregate, result in a
material adverse effect on the financial condition, business,
properties or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) Each of the subsidiaries of the Company listed in Schedule B
hereto (the "Material Subsidiaries") has been duly incorporated and is
an existing corporation under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and each Material Subsidiary is duly qualified to do
business as a foreign corporation in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except such failures to be so qualified
as would not, individually or in the aggregate, have a Material
Adverse Effect; all of the issued and outstanding capital stock of
each Material Subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each
Material Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects,
except where the failure to be so owned would not have a Material
Adverse Effect.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to
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require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(g) The Demerger has been registered in the commercial register
(Handelsregister), and the Shares are duly and validly issued, fully
paid and non-assessable and in all material respects conform to the
description thereof contained in the Prospectus in the section
entitled "Description of Securities to Be Registered."
(h) The Shares have been approved for listing on the New York
Stock Exchange (the "NYSE") and for official quotation on the FSE,
subject to official notice of issuance, and such approvals have not
been withdrawn.
(i) This Agreement has been duly authorized, executed and
delivered by the Company, and the Company has full power and authority
to engage in the Redistribution, as contemplated by this Agreement.
(j) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
Redistribution except such as have been obtained and made under the
laws of Germany, the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and such as may be required under state
securities or Blue Sky laws in connection with the Redistribution
provided, however, that this representation shall not apply to any
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required by the laws of jurisdictions other
than Germany and the United States.
(k) The execution, delivery and performance of this Agreement,
and the compliance with the terms and provisions of this Agreement,
will not result in a breach or violation of any of the terms and
provisions of the organizational documents of the Company or any
subsidiary of the Company.
(l) The execution, delivery and performance of this Agreement,
and the compliance with the terms and provisions of this Agreement
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
Material Subsidiary or any of their properties, or any agreement,
instrument or obligation to which the Company or any such Material
Subsidiary is a party or by which the Company or any such Material
Subsidiary is bound or to which any of the properties of the Company
or any such Material Subsidiary is subject, except for any such
breaches, violations or defaults which, individually or in the
aggregate, would not have a Material Adverse Effect.
(m) The Company and its Material Subsidiaries (i) possess
adequate
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certificates, authorizations or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them, except for such certificates, authorizations or
permits the failure to obtain which, will not, individually or in the
aggregate, have a Material Adverse Effect, and (ii) to the best of the
Company's knowledge, have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its Material Subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(n) To the knowledge of the Company, no labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent or contemplated that is reasonably likely
to have a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, there are no pending
or, to the best of the Company's knowledge, threatened or contemplated
actions, suits or proceedings against or affecting the Company, any of
its respective subsidiaries or properties that, if determined
adversely to the Company or any of its respective subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which otherwise would
have a material adverse effect on the Redistribution.
(p) Except as described in the Prospectus, (i) there are no
outstanding warrants or options issued by the Company to purchase any
shares of the capital stock of the Company, (ii) there are no
statutory, contractual, preemptive or other rights applicable to the
Company to subscribe for or to purchase any Shares from the Company
that do not by their terms terminate on or after the first day of
trading of the Shares on the NYSE or FSE (the "Trading Date"), and
(iii) there are no restrictions upon transfer of the Shares pursuant
to the Company's organizational documents (except for those applicable
to registered shares under German law and the Articles of Association
of the Company).
(q) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued securities
or granted options on any securities, (ii) incurred any liabilities or
obligations, direct or contingent, other than those liabilities and
obligations which, individually or in the aggregate, would not have a
Material Adverse Effect, (iii) entered into any transactions not in
the ordinary course of business which would, individually or in the
aggregate, have a Material Adverse Effect or (iv) declared or paid any
dividend on any class of its capital stock.
(r) Neither the Company nor any of its Material Subsidiaries (i)
is in violation of its organizational documents, except for any
defaults or events that, individually or in the aggregate, would not
have a Material Adverse Effect, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or
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condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is
subject, except for any such defaults that would not, individually or
in the aggregate, have a Material Adverse Effect, or (iii) except for
any violations or failures to obtain that, individually or in the
aggregate, would not have a Material Adverse Effect, is in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may
be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(s) Except as disclosed in the Prospectus, to the best of the
Company's knowledge, neither the Company nor any of its subsidiaries
is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances, owns
or operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site disposal
or contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would, individually or in the
aggregate, have a Material Adverse Effect; and the Company is not
aware of any pending investigation which would reasonably be expected
to lead to such a claim.
(t) The combined financial statements and the related notes
included in the Registration Statement and the Prospectus present
fairly, in all material respects, the financial position of the
Company as of the dates shown and its combined results of operations
and cash flows for the periods shown, and such financial statements
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis. The schedule
included in the Registration Statement presents fairly, when
considered in relation to the combined financial statements taken as a
whole, the information required to be stated forth therein.
(u) Except as disclosed in the Prospectus, since the date of the
latest audited combined financial statements included in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and
except as disclosed in the Prospectus, since the date of the latest
unaudited combined financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
financial condition, business, properties or results of operations of
the Company and its subsidiaries taken as a whole.
(v) The Company is not and, after giving effect to the
issuance of the Shares as described in the Prospectus, will not be
required to register as an "investment company" under the Investment
Company Act of 1940.
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(w) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Redistribution Manager for a brokerage commission, finder's fee or
other like payment in respect of the Redistribution Shares.
3. Redistribution of Shares. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
each Redistribution Manager agrees, severally and not jointly, to use its best
efforts to procure purchasers for all, or a portion of the Redistribution
Shares. The Redistribution Managers have procured purchasers for [ ]
Redistribution Shares at the price of euro [ ] per Redistribution Share. On the
Trading Date, the Redistribution Managers shall arrange for the purchase from
the Selling Shareholders of all, or a portion of, the Redistribution Shares
which the Selling Shareholders are committed to sell at the Redistribution Price
and on the same date shall arrange for the sale to purchasers of such
Redistribution Shares at the same Redistribution Price. Notwithstanding the
foregoing sentence, (i) if the Redistribution Managers procure purchasers for a
number of Redistribution Shares that is less than the number of Redistribution
Shares which the Selling Shareholders are committed to sell at the
Redistribution Price, the Redistribution Managers shall arrange for the purchase
from the Selling Shareholders, on a pro rata basis, of the number of such
Redistribution Shares equal to the number of Redistribution Shares for which the
Redistribution Managers have procured purchasers, subject to adjustment to avoid
the sale of fractional Shares and (ii) if the Redistribution Managers procure
purchasers for a number of Redistribution Shares greater than the number of
Redistribution Shares which the Selling Shareholders are committed to sell at
the Redistribution Price, the allocation of the Redistribution Shares to
purchasers shall be at the discretion of the Joint Global Co-ordinators and
Bookrunners on behalf of the Redistribution Managers. The redistribution price
at which the Redistribution Shares will be redistributed will be based on the
price at which the maximum number of Redistribution Shares would be
redistributed as determined by the Joint Global Co-ordinators and Bookrunners,
each investor's indications will be limited to a maximum of 5% of the
outstanding share capital of Celanese AG in the aggregate. In the event that
there is more than one price maximising the number of Celanese shares to be
redistributed, the Redistribution will be set at the lowest price.
The Joint Global Co-ordinators and Bookrunners, on behalf of the
Redistribution Managers, will have sole discretion to determine and resolve any
questions about the validity, form, eligibility (including time of receipt) or
acceptance of any irrevocable commitments provided by the Selling Shareholders.
Their determination will be final and binding. The Joint Global Co-ordinators
and Bookrunners reserve the absolute right to reject irrevocable commitments
provided by the Selling Shareholders if they are not in the proper form or if
payment would, in the opinion of the Joint Global Co-ordinators and Bookrunners
or their counsel, be unlawful. The Joint Global Co-ordinators and Bookrunners
also reserve the right to waive any defect or irregularity in the irrevocable
commitments provided by the Selling Shareholders, and the Joint Global
Co-ordinators and Bookrunners' interpretations of the terms and conditions of
the Redistribution will be final and binding.
Each Redistribution Manager acknowledges that no action has been taken
by the Company that would permit the offer or sale of the Redistribution Shares
or the distribution of the Prospectus in any jurisdiction where action for that
purpose is required, other than the United States and Germany. The Company will
not assume any responsibility with respect to the right of any Redistribution
Manager or other person to offer or sell the Redistribution Shares or distribute
the Prospectus in any jurisdiction except under circumstances that will result
in
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compliance with applicable law. Each Redistribution Manager agrees for itself
that it will obtain any consent, approval or authorization required to offer or
sell the Redistribution Shares or to distribute the Prospectus under the laws or
regulations of any jurisdiction, other than the United States or Germany, where
such Redistribution Manager proposes to make offers or sales of Redistribution
Shares or to distribute the Prospectus.
4. Compensation of the Redistribution Managers. As compensation for the
services rendered by the Redistribution Managers pursuant to this Agreement, the
Company agrees to pay to each Redistribution Manager, pro rata for the number of
Redistribution Shares sold by such Redistribution Manager, selling commissions
in the amount of 2% of the Redistribution Price times the number of
Redistribution Shares allocated by the Joint Global Co-ordinators and
Bookrunners, in consultation with the Company, to each Redistribution Manager
(the "Selling Commissions"), provided that if the Selling Commissions so
allocated to any Redistribution Manager are less than the Minimum Selling
Commissions (as defined below) the Company will pay such Redistribution Manager
its Minimum Selling Commission (as defined below). The Minimum Selling
Commissions payable to the Redistribution Managers are deutsche xxxx 2 million
payable to each of the Joint Global Co-ordinators and Bookrunners; and deutsche
xxxx 333,333 to each of the six Co-Lead Managers (as named in Schedule A to the
Redistribution Agreement) (the "Minimum Selling Commissions"). The Company may
request such information from the Redistribution Managers as it deems necessary
or appropriate for the purpose of the foregoing consultation, but the Joint
Global Co-ordinators' and Bookrunners' determination of the allocations to the
Redistribution Managers shall be final and binding on all Redistribution
Managers. Payment of the Selling Commissions and, if applicable, the Minimum
Selling Commissions, due to the Redistribution Managers shall be made by the
Company in same day funds by wire transfer at 9:30 a.m., October 27, 1999
(Frankfurt time) to accounts previously designated to the Company by the Joint
Global Co-ordinators and Bookrunners, or at such other time not later than seven
full business days after the Trading Date as the Company and the Joint Global
Co-ordinators and Bookrunners determine, such time being referred to as the
"Closing Date."
5. Certain Agreements of the Company. The Company agrees with the
several Redistribution Managers that:
(a) The Company will file the U.S. Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if
applicable, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Registration Statement.
The Company will advise the Joint Global Co-ordinators and
Bookrunners promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Joint Global Co-ordinators and
Bookrunners promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and, unless legally required,
will not effect such amendment or
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supplementation without the Joint Global Co-ordinators and Bookrunners
consent which will not be unreasonably withheld; and the Company will
also advise the Joint Global Coordinators and Bookrunners promptly
after it receives notice thereof, of the effectiveness of the
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of the Registration Statement or the U.S. Prospectus
and of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement and will use its reasonable
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a U.S. Prospectus relating to the
Redistribution Shares is required to be delivered under the Act in
connection with the Redistribution by any Redistribution Manager or
dealer, any event occurs as a result of which the U.S. Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if for any other reason it is necessary
at any time to amend the U.S. Prospectus to comply with the Act, the
Company will promptly notify the Joint Global Co-ordinators and
Bookrunners of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. The Company also will promptly prepare, at its own
expense, a conforming amendment or supplement to the German Prospectus
and the International Prospectus. Neither the Joint Global
Co-ordinators and Bookrunners consent to, nor the Redistribution
Managers' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) The Company will furnish to the Redistribution Managers
copies of the Registration Statement (three of which will be signed
and will include all exhibits), each related Preliminary U.S.
Prospectus, and, so long as a U.S. Prospectus relating to the
Redistribution Shares is required to be delivered under the Act in
connection with sales by any Redistribution Manager or dealer, the
U.S. Prospectus and all amendments and supplements to such documents,
in each case in such quantities as the Joint Global Coordinators and
Bookrunners reasonably request. The Company also will furnish to the
Redistribution Managers copies of each German Prospectus and
International Prospectus relating to and used in connection with the
Redistribution and all amendments and supplements to such documents,
in each case in such quantities as the Joint Global Coordinators and
Bookrunners each reasonably request. The U.S. Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the Effective Time of the Registration Statement. All other documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Redistribution Managers
all such documents.
(e) The Company will promptly from time to time take such action
as the
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Joint Global Co-ordinators and Bookrunners may reasonably request to
qualify the Redistribution Shares for offer and sale under the
securities laws of such jurisdictions in the United States and Germany
and to comply with such laws of such jurisdictions for as long as may
be necessary to complete the Redistribution, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in the United States or any other jurisdiction, and no such action
shall be required if, as a result thereof, the Company would be
subject to taxation in any jurisdiction which the Company is not
currently so subject.
(f) During the period of five years hereafter, the Company will
furnish to the Redistribution Managers, as soon as practicable after
the end of each fiscal year and in accordance with applicable law, a
copy of its annual report (in English) to stockholders for such year;
and the Company will furnish to the Redistribution Managers (i) as
soon as available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders and (ii)
from time to time, such other information concerning the Company as
the Joint Global Co-ordinators and Bookrunners may each reasonably
request.
(g) The Company will pay (i) all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Redistribution Managers (if and to the extent incurred by them)
for any filing fees, any fees and disbursements of counsel to the
Registrar, Co-Registrar and any Paying Agents (as defined in the
Registration Statement), (ii) for other reasonably and documented
expenses to the extent agreed to by the Company, which agreement shall
not be unreasonably withheld, incurred by the Redistribution Managers
in connection with qualification of the Redistribution Shares for sale
and determination of their eligibility for investment under the state
securities or Blue Sky laws of such states of the United States as the
Joint Global Co-ordinators and Bookrunners may reasonable request,
(iii) for all expenses relating to marketing activities agreed to by
the Company incident to the Redistribution, including but not limited
to, expenses associated with the procurement of purchasers, and (iv)
for expenses incurred in distributing the Preliminary Prospectus and
the Prospectus (including any amendments and supplements thereto) to
the Redistribution Managers.
(h) The Company will pay any stamp, transfer or other similar tax
imposed by Germany or the United States in connection with (i) the
execution, delivery and performance of this Agreement, and (ii) the
execution, authentication, issuance, delivery and sale of the
Redistribution Shares or otherwise in connection with the
Redistribution Shares.
(i) The Company will indemnify and hold harmless the
Redistribution Managers against any documentary, stamp, registration
or similar issuance tax, including any interest or penalties, other
than any interest or penalties incurred as a result of the negligence
of the Redistribution Managers, payable in Germany or the United
States on or in connection with the sale of the Shares and on the
execution and delivery of this Agreement.
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(j) The Company will not, without the prior written consent of
the Global Coordinators and Bookrunners, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of or otherwise
enter into any transaction (including a derivative transaction) having
an economic effect similar to a sale of, or announce the offering of,
any of its Shares or any securities which are convertible into or
exchangeable for, or which otherwise represent the right to acquire,
its Shares for a period of six months from the commencement of
official trading of its Shares on the Frankfurt Stock Exchange. The
foregoing restrictions will not apply in the case of sale or transfers
in private transactions to one or several strategic investors or to
one or several entities which are wholly-owned subsidiaries or parents
of, or any corporation or entity which is controlling, controlled by
or under common control with the Company, provided that in each case
the transfees agree to be bound by the foregoing restrictions.
6. Conditions of the Obligations of the Redistribution Managers. The
obligations of the several Redistribution Managers to redistribute the
Redistribution Shares on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) The Redistribution Managers shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time of
the Registration Statement is prior to the execution and delivery of
this Agreement, shall be on or prior to the date of this Agreement or,
if the Effective Time of the Registration Statement is subsequent to
the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftprufungsgesellschaft (the "Auditors") in relation to the
Company, in form and substance satisfactory to the Joint Global
Co-ordinators and Bookrunners, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
Prospectus.
(b) At Closing Date, the Redistribution Managers shall have
received from the Auditors a letter, dated as of the Closing Date, to
the effect that they reaffirm the statements made in the letter
furnished to the Redistribution Managers pursuant to paragraph (a) of
this Section 6.
(c) If the Effective Time of the Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on
the date of this Agreement or such later date as shall have been
consented to by the Joint Global Co-ordinators and Bookrunners. If the
Effective Time of the Registration Statement is prior to the execution
and delivery of this Agreement, the U.S. Prospectus shall have been
filed with the Commission in accordance
12
with the Act and the rules and regulations and Section 5(a) of this
Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Redistribution Managers, shall be
contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred (i) any
change, or any development or event involving a prospective change, in
the financial condition, business, properties or results of operations
of the Company or its subsidiaries, taken as a whole, which, in the
judgment of the Redistribution Managers, is so material and adverse as
to make it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Redistribution
Shares; (ii) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the NYSE or the FSE, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
federal, New York or German authorities; (v) any outbreak or
escalation of major hostilities in which the United States or Germany
is involved, any declaration of war by Congress or the relevant German
authorities or any other substantial national or international
calamity or emergency if, in the judgment of the Redistribution
Managers, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for
the Redistribution Shares; (vi) any change in currency exchange rates
between either the U.S. dollar and the deutsche xxxx or the U.S.
dollar and the euro, or the imposition by the United States or Germany
of exchange controls, as would in any such case, in the reasonable
judgment of the Redistribution Managers, be so material and adverse as
to make it impracticable to proceed with the sale of and payment for
the Redistribution Shares. Further, the Joint Global Co-ordinators and
Bookrunners, on behalf of the Redistribution Managers, reserve the
right to terminate the Redistribution after consultation with the
Company, if its implementation is no longer advisable, for example,
because of turbulence in the international capital markets.
(e) The Redistribution Managers shall have received an opinion,
dated such Closing Date, of Hengeler Xxxxxxx Xxxxxxx Xxxxx, German
Counsel to the Company, to the effect that:
(i) The Company is a stock corporation (Aktiengesellschaft)
duly established and validly existing under the laws of Germany
with corporate power and authority to own its properties and
conduct its business as described in the
13
Prospectus. The Company is duly registered in the commercial
register (Handelsregister) of the local court of Frankfurt am
Main under HRB 42283;
(ii) The Shares to be issued by the Company in the Demerger
have been duly and validly authorized and, upon registration of
the Demerger in the commercial register of Hoechst AG and of the
Company, will be duly and validly issued, fully paid and will
conform to the description thereof contained in the German
Prospectus under the caption "Beschreibung der Aktien;"
(iii) The Demerger has become effective and, by operation of
law, title to all assets belonging to the demerged businesses
have been transferred to the Company;
(iv) The German Prospectus corresponds as to content to the
Registration Statement and is a fair translation thereof except
for immaterial adjustments necessary to comply with the listing
requirements of the FSE;
(v) Upon the publication of the German Prospectus and the
listing and admission for trading of the shares on the FSE no
regulatory or governmental authorization, consent, approval,
order or registration is required in Germany for the
Redistribution Agreement and the performance by the Company of
its obligations thereunder;
(vi) The German Prospectus on its face complies with all
listing requirements of the FSE;
(vii) The Company has taken all actions and made all filings
and publications necessary to have the Shares listed on the FSE;
(viii) Neither the Redistribution of the Redistribution
Shares nor the execution and delivery of the Redistribution
Agreement by the Company nor the performance by the Company of
its obligations thereunder conflict with or result in a violation
of any provision of the Articles of Association of the Company or
any applicable law or regulation of Germany;
(ix) The statements set forth in the German Prospectus under
the captions "Einfuhrung des Euro," "Geschaftsbeziehungen und
Transactionen mit Dritten," "Hauptaktionare," "Allgemeine
Informationen uber die Gesellschaft," "Organe und Mitarbeiter,"
and "Besteuerung in der Bundesrepublik Deutschland," in each case
in so far as they purport to constitute a summary of German law
or the provisions of documents described therein which are
governed by German law, fairly summarize the position under
relevant German law and of such documents;
The statements set forth in the Registration Statement under the
captions "Exchange Rate Information," "Management,"
"Relationships and Third Party
14
Transactions," "Principal and Selling Shareholders," "Description
of Securities to be Registered," "Material United States Federal
Income Tax and German Tax Considerations," and "Service of
Process and Enforcement of Civil Liberties," in each case in so
far as they purport to constitute a summary of German law or the
provisions of documents described therein which are governed by
German law, fairly summarize the position under relevant German
law and of such documents;
(x) The Redistribution Agreement has been duly executed and
delivered by duly authorized officers of the Company and
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms
(subject to customary exclusions regarding bankruptcy and
insolvency laws; and the customary qualification regarding
enforceability of the indemnification provisions under Section 57
et seq. of the German Stock Corporation Act );
(xi) No stamp duties or registration, issue, documentary or
similar taxes or duties are payable in Germany in connection with
the Redistribution of the Redistribution Shares and the execution
and delivery of the Redistribution Agreement;
(xii) All dividends declared and payable on the Shares may
under the laws and regulations of Germany be paid in euros; and
(xiii) Under the laws of Germany, the Redistribution
Managers would be permitted to commence proceedings against the
Company in German courts based on actions under or in connection
with the Redistribution Agreement; and such courts would accept
jurisdiction over any such proceedings.
In rendering such opinion, such counsel may, without independent
investigation, rely, subject to the assumptions, qualifications or
limitations therein, (A) as to all matters of United States federal
laws and state securities laws (if any), upon the opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP referred to below; and (B) solely as
to matters of fact set forth therein and to the extent he deems
proper, upon certificates of responsible officers of the Company and
public officials.
(f) The Redistribution Managers shall have received an opinion,
dated the Closing Date, of Xx. Xxxxxxx Kaffanke, General Counsel of
the Company, to the effect that, except as disclosed in the
Prospectus, to the best of such counsel's knowledge and belief, there
are no pending or threatened or contemplated actions, suits or
proceedings against or affecting the Company, any of its subsidiaries
or properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, or would reasonably be
expected to materially and adversely affect the ability of the Company
to perform its obligations under this Agreement, or which would
otherwise be reasonably expected to have a material adverse effect on
the Redistribution.
15
(g) The Redistribution Managers shall have received an opinion,
dated such Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
United States counsel for the Company, to the effect that:
(i) The agreement of the Redistribution Managers to
redistribute the Redistribution Shares pursuant to the
Redistribution Agreement and the performance by the Company of
its obligations in the Redistribution Agreement do not require
any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United
States, except such as have been obtained or effected under the
Act and except for the qualification of the Shares for listing on
the NYSE under the Exchange Act (but such counsel need express no
opinion as to any consent, approval, authorization, registration
or qualification that may be required under state securities or
Blue Sky laws).
(ii) The statements set forth in the U.S. Prospectus under
"Material United States Federal Income Tax and German Tax
Considerations," insofar as such statements purport to summarize
certain federal income tax laws of the United States, constitute
a fair summary of the principal United States federal income tax
consequences of an investment in the Shares.
(iii) The Company, after giving effect to the issuance of
the Shares, will not be required to register as an "investment
company" under the Investment Company Act of 1940.
(iv) The Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein or was included in the
Registration Statement and based solely upon a telephonic
confirmation from a representative of the Commission, the
Registration Statement was declared effective under the Act as of
the date and time specified in such opinion, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations thereunder.
(v) The statements in the U.S. Prospectus in the Sections
entitled "Service of Process and Enforcement of Civil
Liabilities," and "Material United States Federal Income Tax and
German Tax Considerations" (insofar as such statements constitute
summaries of United States federal legal and regulatory
provisions) fairly present in all material respects the
information called for with respect to such United States legal
and regulatory provisions.
16
(vi) The Shares are duly authorized for listing on the NYSE,
subject only to official notice of issuance.
(vii) Counsel has no reason to believe that the
Registration Statement or any amendment or supplement
thereto, as of its effective date or as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the U.S. Prospectus or any amendment or supplement
thereto, as of its issue date or as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading; it being understood
that such counsel need express no opinion as to the
financial statements or other financial and statistical data
contained in the Registration Statement or the U.S.
Prospectus, as to the information set forth in the U.S.
Prospectus under the caption "The Redistribution," other
than the information set forth in the first and second
paragraphs thereto, and the information set forth in the
Prospectus in the second-to-last paragraph of the cover
page. With respect to such statements, such counsel may
state that such belief is based upon such counsel's
participation in the preparation of the Registration
Statement and the U.S. Prospectus and review and discussion
of the contents thereof and of such other documents as such
counsel shall deem appropriate. Such counsel may state that
they do not express any opinion or belief as to the
statements, insofar as they relate to matters of German law,
made in the U.S. Prospectus.
In rendering such opinions, such counsel may, without
independent investigation, rely, subject to the assumptions,
qualifications or limitations therein, (A) as to all matters of
German law, upon the opinion of Hengeler Xxxxxxx Xxxxxxx Xxxxx,
German Counsel to the Company referred to above; and (B) on the
accuracy of each document they have reviewed (including, without
limitation, the accuracy of the representations and warranties of
the Company in this Agreement) as to matters of fact stated in
any such document.
(g) The Redistribution Managers shall have received from
Shearman & Sterling, counsel for the Redistribution Managers,
such opinion or opinions, dated the Closing Date, with respect to
the incorporation of the Company, the validity of the
Redistribution Shares delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters
as the Redistribution Managers may require, and the Company shall
have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, Shearman & Sterling may rely
as to the incorporation of the Company and all other matters
governed by German law upon the opinions of Hengeler Xxxxxxx
Xxxxxxx Xxxxx, German Counsel to the Company referred to above.
(h ) The Redistribution Managers shall have received a
certificate, dated the
17
Closing Date, of the Chairman of the Company's Management Board
or any Management Board Member and a principal financial or
accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in
this Agreement are true and correct; the Company has complied
with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to such Closing
Date; and, subsequent to the date of the most recent financial
statements included in the Prospectus, there has been no material
adverse change, nor any development or event involving a
prospective material adverse change, in the financial condition,
business, properties or results of operations of the Company and
its subsidiaries taken as a whole, except as set forth in or
contemplated by the Prospectus.
(i) The Redistribution Managers shall have received a
letter, dated the Closing Date, of the Auditors which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not
more than 5 days prior to such Closing Date for the purposes of
this subsection.
The Company will furnish the Redistribution Managers with such conformed copies
of such opinions, certificates, letters and documents as the Redistribution
Managers reasonably request. The Joint Global Co-ordinators and Bookrunners may
in their sole discretion waive on behalf of the Redistribution Managers
compliance with any conditions to the obligations of the Redistribution Managers
hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Redistribution Manager, its partners, directors and officers
and each person, if any, who controls such Redistribution Manager within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Redistribution Manager may become
subject, under the Act, the German Stock Exchange Act (Borsengesetz) or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
Preliminary Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Redistribution Manager for any legal or other expenses reasonably incurred
by such Redistribution Manager in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Redistribution Manager
specifically for use therein, it being understood and agreed that the only such
information furnished by any Redistribution Manager consists of the information
described as such in subsection (b) below; and provided further that the Company
shall not be liable to any Redistribution Manager under the indemnity in this
subsection (a) with respect to any Preliminary Prospectus used in connection
with sales of Shares in the United States to the extent
18
that any loss, claim, damage or liability of such Redistribution Manager results
from the fact that such Redistribution Manager sold Redistribution Shares to a
person as to whom it shall be established that there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the U.S. Prospectus
or of the U.S. Prospectus as then amended or supplemented in any case where such
delivery is required by the Act, if the Company had previously furnished copies
thereof in sufficient quantity to such Redistribution Manager and the loss,
claim, damage or liability of such Redistribution Manager results from an untrue
statement or omission of a material fact contained in the Preliminary Prospectus
used in connection with sales of Redistribution Shares in the United States
which was identified in writing at such time to such Redistribution Manager and
corrected in the U.S. Prospectus or in the Prospectus as then amended or
supplemented.
(b) Each Redistribution Manager will severally, and not jointly,
indemnify and hold harmless the Company, its directors and officers, and each
person, if any who controls the Company within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related Preliminary Prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Redistribution Manager specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Redistribution Manager
consists of the following information in the Prospectus furnished on behalf of
each Redistribution Manager: the fourth paragraph and the list of Redistribution
Managers at the bottom of the cover page concerning the terms of the offering by
the Redistribution Managers and the information set forth under the caption "The
Redistribution," (or "Die Umplazierung" in the German Prospectus) except for the
first paragraph.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party in writing will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party in
writing of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying
19
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entering of any judgment with respect to, any pending or
threatened action or claim in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities or actions in respect thereof referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand, and the Redistribution Managers on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities or actions in respect thereof as well as any
other relevant equitable considerations. The relative fault of the Company, on
the one hand, and the Redistribution Managers, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Redistribution Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities or actions in respect thereof referred to
in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Redistribution Manager shall be required to contribute any
amount in excess of the commissions received by such Redistribution Manager. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Redistribution Managers'
obligations in this subsection (d) to contribute are several based upon the
Redistribution Managers' proportionate share of the aggregate Selling
Commissions paid by the Company.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Redistribution Manager within the meaning of the Act; and the obligations of the
Redistribution Managers under this Section shall be in addition to any liability
which the respective Redistribution Managers may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
20
8. Default of the Redistribution Managers. If on the Closing Date any
Redistribution Manager defaults in its obligations with respect to the
Redistribution Shares allocated to it on the Trading Date, the Joint Global
Co-ordinators and Bookrunners will first use their best efforts to arrange for
such Redistribution Shares to be redistributed by other persons, including any
of the Redistribution Managers. If arrangements satisfactory to the Joint Global
Co-ordinators and Bookrunners and the Company for the redistribution of such
Redistribution Shares by other persons are not made after such default, the
non-defaulting Redistribution Managers shall be obligated severally, in
proportion to their respective quota (calculated on the minimum Selling
Commissions set forth in Section 2), to take up the Redistribution Shares that
such defaulting Redistribution Manager or Redistribution Managers failed to
redistribute on such Closing Date. The total number of additional Redistribution
Shares to be allocated to each non-defaulting Redistribution Manager will be pro
rata to the number of Redistribution Shares being otherwise sold by such
Redistribution Manager. The Company shall not pay Selling Commissions on any
Redistribution Shares not sold. As used in this Agreement, the term
"Redistribution Manager" includes any person substituted for a Redistribution
Manager under this Section. Nothing herein will relieve a defaulting
Redistribution Manager from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Redistribution Managers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Redistribution Manager, the Company or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of the Redistribution Shares. If this Agreement is
terminated pursuant to Section 8 or if for any reason the agreement to
redistribute the Redistribution Shares by the Redistribution Managers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Redistribution Managers pursuant to Section 7 shall remain in
effect, and if any Redistribution Shares have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the agreement to redistribute the Redistribution
Shares by the Redistribution Managers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(d), the Company will reimburse the Redistribution Managers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the Redistribution.
10. Notices. All communications hereunder will be in writing and, if
sent to the Redistribution Managers, will be mailed, delivered or telegraphed
and confirmed to the Redistribution Managers, c/o Credit Suisse First Boston
(Europe) Limited, Xxx Xxxxx Xxxxxx, Xxxxxx X000XX, Xxxxxx Xxxxxxx, Attention:
Investment Banking Department--Equity Capital Markets; Dresdner Bank AG, Global
Corporate Finance, Transaction Services, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx; or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at Celanese AG, Xxxxxxxx X-000, Xxxxxxxxxxxxx Xxxxxx, X-00000, Xxxxxxxxx
xx Xxxx, Xxxxxxx; provided, however, that any notice to a Redistribution Manager
pursuant to
21
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Redistribution Manager.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Redistribution Managers. The Joint Global
Co-ordinators and Bookrunners will act for the several Redistribution Managers
in connection with this Redistribution, and any action under this Agreement
taken by the Joint Global Co-ordinators and Bookrunners will be binding upon all
the Redistribution Managers.
13. Counterparts. This Agreement may be executed 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 Agreement.
22
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Federal Republic of Germany, without regard
to principles of conflicts of laws.
If the foregoing is in accordance with the Redistribution Managers'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Redistribution Managers in accordance with its terms.
CELANESE AG
By:
Name:
Title:
The foregoing Redistribution Agreement is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED Acting on behalf of
itself and the other Redistribution Managers named in
Schedule A
By: _______________________________
Attorney-in-fact
DRESDNER BANK AG
Acting on behalf of itself and the other
Redistribution Managers named in
Schedule A
By: ________________________________
Attorney-in-fact
SCHEDULE A
LIST OF REDISTRIBUTION MANAGERS
23
JOINT GLOBAL CO-ORDINATOR AND BOOKRUNNER MINIMUM SELLING
COMMISSIONS
Credit Suisse First Boston (Europe) Limited DM 2,000,000
Dresdner Bank AG DM 2,000,000
CO-LEAD MANAGER
---------------
Bayerische Landesbank Girozentrale DM 333,333
Deutsche Bank AG DM 333,333
DG Bank Deutsche Genossenschaftsbank AG DM 333,333
Xxxxxxx Xxxxx International DM 333,333
Helaba Landesbank Hessen-Thuringen Girozentrale DM 333,333
X.X. Xxxxxx Securities Ltd. DM 333,333
24
SCHEDULE B
Material Subsidiaries
Celanese Canada Inc.
CNA Holdings Inc.
Diogenes Dreizehnte Vermogensverwaltungs, GmbH
Ticona LLC
Celanese Ltd.
Celanese Acetate LLC
Grupo Celanese SA
