Exhibit (e)(5)
BCP CRYSTAL ACQUISITION GMBH & CO. KG
Stuttgart, Amtsgericht Stuttgart, HRA 13860
Geschaftsfuhrender Gesellchafter: BCP Management GmbH,
Stuttgart, Amtsgericht Stuttgart, HRB 24111
Geschaftsfuhrer: Xxxxx Xxxxxx Xxx
December 15, 2003
Kuwait Petroleum Corporation
Salhiya Complex
Kuwait City
Kuwait
Ladies and Gentlemen:
This letter ("LETTER AGREEMENT") confirms the agreement between BCP
Crystal Acquisition GmbH & Co. KG (the "BIDDER"), a limited partnership formed
by Blackstone Capital Partners IV L.P. and its affiliates ("BLACKSTONE"), and
Kuwait Petroleum Corporation (the "SELLER", and together with BIDDER, the
"PARTIES") with respect to certain commitments of SELLER relating to the
proposed voluntary all-cash takeover offer, to be made by BIDDER for all shares
of Celanese AG (the "TARGET") substantially upon the terms and subject to the
conditions set out in the term sheet attached hereto as Schedule 1 (the "OFFER
TERM SHEET") (such proposed takeover offer, the "TENDER OFFER", which term shall
include any increased offer and any offer amended in accordance with the terms
of this Letter Agreement).
RECITALS
WHEREAS, TARGET is a stock corporation (Aktiengesellschaft) with its
registered seat in Xxxxxxxx iT, Germany, registered with the commercial register
at the local court of Konigstein im Taunus under HRB 5277 with a stated share
capital (Grundkapital) as of the date hereof of EURO 140,069,354.00 divided into
54,790,369 shares without par value (the "TARGET SHARES");
WHEREAS, BIDDER is a limited partnership with its registered seat in
Stuttgart, Germany, registered with the commercial register at the local court
of Stuttgart under HRA 13860, with the sole general partner (Komplementar) being
BCP Management GmbH and the sole limited partner being BCP Acquisition GmbH &
Co. KG;
WHEREAS, SELLER is a corporation established pursuant to the laws of
the State of Kuwait having its principal office at Salhiya Complex, Kuwait City,
Kuwait;
WHEREAS, SELLER is the owner of 14,400,000 Target Shares (the "SELLER
SHARES"); and
WHEREAS, as an inducement to the willingness of BIDDER to launch the
Tender Offer, XXXXXX has requested that SELLER executes this Letter Agreement.
NOW, THEREFORE, the Parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF SELLER. SELLER represents and
warrants to BIDDER by way of an independent guarantee (selbstandiges
Garantieversprechen) pursuant to Section 311(1) of the German Civil
Code (Burgerliches Gesetzbuch) that the statements set forth in this
Section 1 are true and correct as of the date hereof and will be true
and correct at the date of the purchase by BIDDER of the Seller Shares
and the Future Shares (as defined below), if any, pursuant to the
Tender Offer (the "CLOSING DATE"). The scope and content of each
representation and warranty of SELLER contained in this Section 1 shall
be exclusively governed by the provisions of this Letter Agreement (and
no representation and warranty of SELLER shall be construed as a
guarantee (Garantie fur die Beschaffenheit der Sache) pursuant to
Sections 443 and 444 of the German Civil Code).
a. Authority. SELLER is a corporation duly organized and validly
existing under the laws of the jurisdiction of its
incorporation. SELLER has the legal capacity and all requisite
power and authority to enter into this Letter Agreement, to
perform its obligations hereunder and to consummate the
transactions contemplated hereby, and this Letter Agreement
constitutes a valid and binding obligation of SELLER
enforceable against it in accordance with its terms.
b. Title to Shares. SELLER is, and from the date hereof through
and on the Closing Date will be, the owner of the Seller
Shares and SELLER on the Closing Date will be the owner of the
Future Shares (as hereinafter defined), if any. The Seller
Shares and the Future Shares, if any, constitute all Target
Shares legally or beneficially owned by SELLER as of the date
hereof, acquired after the date hereof, or which SELLER is, or
will become, entitled to acquire upon the exercise of any
option, warrant or other right (whether or not currently
exercisable or subject to conditions) (any such Target Shares
acquired by SELLER or to which SELLER is or becomes so
entitled to acquire, in each case after the date hereof, the
"FUTURE SHARES"). The Seller Shares are fully paid up and the
Future Shares, if any, will be fully paid up prior to the
Closing Date. As of the date hereof, SELLER has good and valid
title to the Seller Shares, and as of the Closing Date, SELLER
will have good and valid title to the Seller Shares and the
Future Shares, if any, in each case free and clear of any
third party rights (including, without being limited to, any
mortgage, pledge, assessment, security interest, lease, lien,
adverse claim, levy, charge or other encumbrance of any kind)
("LIENS"). As of the date hereof, SELLER has the unrestricted
right, power and authority to sell and transfer to BIDDER all
of the Seller Shares in accordance with the terms of this
Letter Agreement and free and clear of any Liens, except for
Liens arising from acts of BIDDER and Liens that any custodian
that holds the Seller Shares may have on the Seller Shares
according to its standard business conditions; SELLER
represents and warrants, that it has not taken any action
giving rise to the right of such custodian to invoke such
Lien. As of the Closing Date, SELLER will have the
unrestricted right, power and authority to sell and transfer
to BIDDER all of the Seller Shares and the Future Shares, if
any, in each case in accordance with the terms of this Letter
Agreement and free and clear of any Liens, except for Liens
arising from acts of BIDDER.
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c. No Conflict: Required Consents. Except for approvals required
under applicable antitrust laws in connection with the
consummation of the transactions contemplated hereby, the
execution and delivery of this Letter Agreement by SELLER, the
tendering of the Seller Shares and the Future Shares, if any,
in the Tender Offer contemplated hereby and the compliance by
SELLER with the terms of this Letter Agreement will not
conflict with, require any consent or approval under, or
result in any violation or default under any other agreement
to which SELLER is a party or by which its assets or
properties are bound, including any voting agreement,
stockholders agreement, voting trust, trust agreement, pledge
agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit,
concession, franchise or license, or violate or require any
consent or approval under, any judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable
to SELLER, the Seller Shares or the Future Shares, if any.
2. REPRESENTATIONS AND WARRANTIES OF BIDDER. BIDDER represents and
warrants to SELLER by way of an independent guarantee (selbstandiges
Garantieversprechen) pursuant to Section 311(1) of the German Civil
Code (Burgerliches Gesetzbuch) that the statements set forth in this
Section 2 are true and correct as of the date hereof and will be true
and correct as of the Closing Date. The scope and content of each
representation and warranty of BIDDER contained in this Section 2 shall
be exclusively governed by the provisions of this Letter Agreement (and
no representation and warranty of BIDDER shall be construed as a
guarantee (Garantie fur die Beschaffenheit der Sache) pursuant to
Sections 443 and 444 of the German Civil Code).
a. Authority and Management. BIDDER is a limited partnership duly
organized and validly existing under the laws of its
jurisdiction of formation. XXXXXX has the legal capacity and
all requisite power and authority to enter into this Letter
Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby, and this
Letter Agreement constitutes a valid and binding obligation of
BIDDER enforceable against BIDDER in accordance with its
terms. The general partner of BIDDER is, and from the date
hereof through and on the Closing Date will be, indirectly
wholly-owned by Blackstone and other reputable co-investors
and be controlled by Blackstone. All managing directors
(Geschaftsfuhrer) of BIDDER are, and from the date hereof
through and on the Closing Date will be, members of senior
management of Blackstone Management Associates IV, L.L.C., the
general partner of Blackstone Capital Partners IV L.P. (except
that, prior to the Closing Date, certain of the managing
directors may be members of Blackstone's legal counsel).
b. Target Shares. Except as permitted by Section 5(b), BIDDER and
its affiliates (i) do not and through the Closing Date will
not own, directly or indirectly, any Target Shares, (ii) have
not entered into, and from the date hereof through the Closing
Date will not enter into, any transaction that could result in
the attribution of voting rights to SELLER pursuant to Section
30 of the German Takeover Act (Wertpapiererwerbs-und
Ubernahmegesetz, the "TAKEOVER ACT") and (iii) will ensure
that its affiliates comply with the foregoing.
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c. No Conflict; Required Consents. Except for (i) approvals
required under applicable antitrust laws in connection with
the consummation of the transactions contemplated hereby, (ii)
approval of the publication of the Offer Document to be
prepared in connection with the Tender Offer (the "OFFER
DOCUMENT") by the German Supervisory Authority for Financial
Services (Bundesanstalt fur Finanzdienstleistungsaufsicht, the
"BAFIN"), (iii) the approval of the Vermont Department of
Banking, Insurance, Securities and Health Care Administration
and the Bermuda Monetary Authority with respect to the
insurance subsidiaries of TARGET and (iv) such consents or
approvals as would not materially delay or impede the
consummation of the proposed transactions, the execution and
delivery of this Letter Agreement by BIDDER, the consummation
of the transactions contemplated hereby and the compliance by
BIDDER with the terms of this Letter Agreement will not
conflict with, require any consent or approval under, or
result in any violation or default under any other agreement
to which BIDDER is a party or by which its assets or
properties are bound, including any voting agreement,
stockholders agreement, voting trust, trust agreement, pledge
agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit,
concession, franchise or license, or violate or require any
consent or approval under, any judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable
to BIDDER, in each case assuming compliance by any affiliates
of TARGET with any applicable requirements of the United
States Securities and Exchange Commission (the "SEC") or the
BaFin.
3. COMMITMENT TO LAUNCH TENDER OFFER.
a. Provided that BIDDER has not terminated this Letter Agreement
pursuant to Section 3(d), and further provided that TARGET has
signed an undertaking to support the Tender Offer, BIDDER
undertakes to publish the decision to launch the Tender Offer
(Section 10(1) of the German Takeover Act) substantially in
the form attached as Schedule 2 (the "Announcement") without
undue delay after the date of execution of this Letter
Agreement and in accordance with the provisions of the
Takeover Act.
b. Provided that TARGET has issued a press release supporting the
Tender Offer, and that BIDDER has not terminated this Letter
Agreement pursuant to Section 3 (d), BIDDER, undertakes to
launch the Tender Offer for the Target Shares (i) at an offer
price of not less than EUR 32.50 per Target Share, assuming
that the number of Target Shares outstanding does not increase
from the number outstanding on the date hereof (except for the
issuance of up to 1,151,600 shares pursuant to currently
outstanding options) prior to the Closing Date; (ii) on the
condition that BIDDER acquires a minimum percentage of Target
Shares in the Tender Offer, which percentage shall be not more
than 85% of all Target Shares issued and outstanding,
excluding for the purposes of such calculation any Target
Shares held directly or indirectly by TARGET; and (iii)
otherwise substantially upon the terms and, without prejudice
to BIDDER's rights pursuant to Section 3(d), subject to the
conditions set out in the Offer Term Sheet (subject to such
amendments (x) as may be required by the BaFin to comply with
the requirements of the Takeover Act, (y) as may be
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necessary to comply with all applicable U.S. securities laws
and regulations, or (z) as may be necessary to comply with
such other laws or regulations as may be relevant).
c. Provided that TARGET has issued a press release supporting the
Tender Offer, and that BIDDER has not terminated this Letter
Agreement pursuant to Section 3(d), BIDDER undertakes to
submit a draft of the Offer Document, which is substantially
complete and final in all material respects, to SELLER for
informational purposes after the decision to launch the Tender
Offer has been published but a reasonable period in advance of
submission of the Offer Document to the BaFin in order to give
SELLER the opportunity to review the Offer Document with
regard to information contained therein which relates to
SELLER or the position of SELLER with regard to the
undertaking to sell its Target Shares, and to submit the final
Offer Document to the BaFin as expeditiously as possible,
within the time limits set forth in Section 14 of the Takeover
Act.
d. BIDDER may terminate this Letter Agreement by giving written
notice to SELLER prior to the publication of the Offer
Document pursuant to Section 14(2) of the Takeover Act in the
event that one or more of the following events has occurred
since the date of this Letter Agreement:
(i) the publication by any third party not affiliated or
acting in concert with Blackstone or BIDDER of its
decision to launch a tender offer (Section 10 of the
Takeover Act) at a higher price per Target Share (in
the case of an offer that is not an all-cash offer,
as determined in the reasonable judgment of BIDDER
and, if requested by SELLER, confirmed by an
investment bank of international reputation selected
by XXXXXX and reasonably acceptable to SELLER) than
that offered by the BIDDER in the Tender Offer; or
(ii) the breach by TARGET, its Management Board or any
member of the Management Board of any of the
obligations under the letter, dated December 14,
2003, from TARGET to Xxxxxxx X. Xxxxxxxxxx; or
(iii) the occurrence of any event or the failure of an
event to occur or the existence of a condition which,
if such event were to occur or fail to occur or such
condition were to exist, as the case may be, after
the launch of the Tender Offer, would allow BIDDER
not to consummate the Tender Offer pursuant to the
conditions contained in the Offer Term Sheet;
(iv) the failure of BIDDER to finalize documentation
satisfactory to BIDDER providing for debt financing
on terms consistent with those contained in the
commitment letters by Xxxxxx Xxxxxxx Xxxx Xxxxxx Bank
Limited, Xxxxxx Xxxxxxx Senior Funding Inc., Deutsche
Bank AG, London Branch, Deutsche Bank AG Cayman
Islands Branch and Deutsche Bank Securities Inc.,
dated December 6, 2003 previously disclosed by BIDDER
to SELLER in a sufficient amount to finance the
Tender Offer, the subsequent acquisition of 100% of
the Target Shares, the refinancing of existing debt
of TARGET and the funding for or on behalf of BIDDER
or TARGET of $462.5 million of pension
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contributions with respect to TARGET, provided that
BIDDER shall use good faith efforts to finalize such
documentation, it being understood that BIDDER shall
not be required to accept any material changes to
such terms or to commit additional funds to the
proposed financing; or
(v) actions taken or failed to be taken by the BaFin or
the SEC requiring BIDDER to amend the terms of the
Tender Offer from those set forth in the Offer Term
Sheet and such amendment of the terms is materially
adverse to the position of BIDDER.
4. COMMITMENT TO TENDER.
a. SELLER agrees to validly tender, no later than the 15th
business day of the initial Tender Offer acceptance period,
pursuant to and in accordance with the terms of the Tender
Offer and, except as provided in Section 4(c) below, will
cause to remain validly tendered and not withdrawn until
termination of this Letter Agreement, the Seller Shares and
the Future Shares, if any, provided that the Tender Offer
complies with the terms set forth in Section 3(b); further
provided that SELLER shall not be released from its obligation
to tender and not withdraw the Seller Shares and the Future
Shares, if any, in the event that (i) (A) the BaFin requires
BIDDER to amend the terms of the Tender Offer to comply with
the requirements of the Takeover Act or (B) the SEC requires
BIDDER to amend the terms of the Tender Offer to comply with
applicable U.S. securities laws and regulations, and (ii) (x)
the change of the terms of the Tender Offer required by the
BaFin or the SEC does not relate to a reduction of the offer
price or (y) the change of the terms of the Tender Offer
required by the BaFin or the SEC, as the case may be, is not
materially less favorable to SELLER insofar as the change
relates to the minimum tender threshold or the conditions to
completion of the Tender Offer and, in the aggregate, is not
less favorable to the shareholders of TARGET than the terms
set forth in the Offer Term Sheet, in each case as determined
in the reasonable judgment of SELLER.
b. Except as provided herein, the tendered Seller Shares and the
Future Shares, if any, will be subject to the same terms,
conditions and procedures as any other Target Shares tendered
in the Tender Offer, and SELLER shall be entitled to benefit
to the same extent as any other shareholder of TARGET who
tenders Target Shares into the Tender Offer from an amendment,
revision, extension, improvement or increase of the Tender
Offer.
c. SELLER shall be entitled to terminate this Letter Agreement
and to rescind any acceptance of the Tender Offer in the event
of (1) the publication of the decision to launch a tender
offer (Section 10 of the Takeover Act) by any third party not
affiliated or acting in concert with SELLER which involves a
higher price per Target Share than the Tender Offer (in the
case of an offer that is not an all-cash offer, as determined
in the reasonable judgment of the board of directors of SELLER
and, if requested by XXXXXX, confirmed by an investment bank
of international reputation selected by SELLER and reasonably
acceptable to BIDDER) or (2) the public announcement of any
other competing transaction that provides for the acquisition
by
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a third party of all of the outstanding Target Shares at a
higher price per Target Share than the Tender Offer
(determined as described in the preceding clause (1)) (a
"SUPERIOR OFFER"); however, provided that (x) such termination
and rescission may be made only on or after the earlier of (i)
the tenth business day following such publication or
announcement and (ii) the date that is three business days
prior to the expiration of the initial Tender Offer acceptance
period; and (y) no such right of rescission or termination
shall exist if, on or prior to the termination date referenced
in clause (x), BIDDER revises the Tender Offer such that such
competing transaction no longer constitutes a Superior Offer.
5. PROHIBITION ON TRANSFER OF SELLER SHARES; PROHIBITION ON ACQUISITION OF
SHARES.
a. SELLER will not sell, pledge, encumber or otherwise dispose of
any Seller Shares or any Future Shares, except pursuant to the
Tender Offer.
b. From the date hereof until the earlier of the date of
termination of this Letter Agreement or the Closing Date,
neither Party will acquire, directly or indirectly, any Target
Shares except (i) with the prior consent of the other Party or
(ii) in the case of BIDDER, pursuant to the Tender Offer.
6. RESTRICTED ACTIONS. As long as this Letter Agreement is not terminated
in accordance with Section 3(d), 4(c) or 9, SELLER, in its capacity as
a shareholder of TARGET, will not:
a. enter into any agreement with, solicit offers from, or
negotiate or otherwise deal with any other person or entity
with respect to a possible sale or other transfer of, or
tender or similar commitment with respect to, any or all of
the Seller Shares or the Future Shares, if any;
b. enter into or support any agreements with third parties in
support of any proposed change of control transaction
regarding the TARGET with a party other than BIDDER or one of
its affiliates;
c. support a sale of a substantial amount of the TARGET's assets
to a party other than BIDDER or one of its affiliates;
d. support any increase in the share capital of the TARGET or the
issuance by the TARGET of additional shares to third parties;
or
e. support the grant of voting rights, or the sale or grant of an
option to buy any of the Seller Shares or the Future Shares,
if any, to any third party.
7. ANNOUNCEMENT OF SUPPORT; FURTHER ASSURANCES.
a. On the date on which BIDDER publishes its decision to launch
the Tender Offer, SELLER will issue a press release, publicly
announcing its support of the Tender Offer and its commitment
to tender the Seller Shares and the Future Shares, if any,
and, unless this Letter Agreement is terminated pursuant to
Section 3(d) , 4(c) or 9,
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SELLER will not make any public statement that conflicts with
or is inconsistent with such statements. The Parties agree
that the press release will be issued simultaneously with, or
immediately after, a press release issued by the TARGET
confirming the support of TARGET's management for the Tender
Offer.
b. Subject to any limitations arising under applicable law,
SELLER, in its capacity as a shareholder of TARGET, will
execute and deliver any additional documents, and take any
other actions, that are necessary to carry out this Letter
Agreement.
8. CONFIDENTIALITY. Except (i) for the press release described in Section
7, (ii) after the launch of the Tender Offer by BIDDER in accordance
with the Takeover Act (i.e. publication of the Offer Document), or
(iii) as required by applicable law, rule, regulation or order, in
connection with the Tender Offer or otherwise, neither of the Parties
shall, and each shall cause its respective subsidiaries, directors,
officers, employees, advisors or affiliates not to, disclose to any
person or entity the contents of this Letter Agreement, the existence
of the discussions pursuant hereto, or any nonpublic information
provided by the respective other Party to such Party in connection with
this Letter Agreement (including, without limitation, the Offer Term
Sheet and drafts of the Offer Document) ("CONFIDENTIAL INFORMATION"),
other than to their respective directors, officers, employees and
advisors, or the TARGET's directors, officers, employees and advisors,
in each case on a need-to-know basis. If any Confidential Information
relates to the U.S. federal income tax treatment or tax structure of
the transactions contemplated by this Letter Agreement (the
"TRANSACTIONS") then, notwithstanding anything herein to the contrary,
the Parties (or any employee, representative or other agent of either
of the Parties) may disclose to any and all persons the U.S. federal
income tax treatment and tax structure of the Transactions and all
materials of any kind (including opinions or other tax analyses) that
are provided to it relating to such U.S. federal income tax treatment
and tax structure; provided, however, that such disclosure may not be
made (i) until the earliest of (x) the date of the public announcement
of discussions relating to the Transactions, (y) the date of the public
announcement of the Transactions and (z) the date of the execution of
an agreement (with or without conditions) to enter into the
Transactions and (ii) to the extent required to be kept confidential to
comply with any applicable federal or state securities laws. For the
avoidance of doubt, U.S. federal income tax treatment and tax structure
shall not include (i) the identity of any current or future party (or
any affiliate of such party) to the Transactions or (ii) any specific
pricing information or other commercial terms, including the amount of
any fees, expenses, rates or payments (or the amount of any deductions,
credits or other tax items related to the foregoing) arising in
connection with the Transactions.
9. TERMINATION. Unless terminated earlier in accordance with Section 3(d)
or the provisions of Section 4(c), (i) SELLER may terminate this Letter
Agreement if publication of the Offer Document pursuant to Section 14
(2) of the Takeover Act has not occurred by February 28, 2004 and (ii)
this Letter Agreement shall terminate automatically, without the
requirement for service of notice, if the Tender Offer is not
completed, i.e., settlement of the Tender Offer, by July 31, 2004. Upon
such termination, this Letter Agreement shall become void and there
shall be no liability or obligation on
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the part of either Party except with respect to Sections 8, 10, 11, 12
and 14 and this Section 9, which provisions shall survive such
termination.
10. FEES AND EXPENSES. All expenses incurred in connection with the
transactions contemplated herein shall be paid by the Party incurring
such expenses.
11. COUNTERPARTS. This Letter Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
12. GOVERNING LAW. This Letter Agreement shall be governed by German law to
the exclusion of its conflict of law provisions, and exclusive venue
for any dispute related to this Letter Agreement shall be in the city
of Frankfurt, Germany.
13. ASSIGNMENT. This Letter Agreement shall be binding upon and shall inure
to the benefit of the Parties and their respective successors and
permitted assigns. No assignment of this Letter Agreement, or any
rights or obligations hereunder of SELLER, may be made without the
prior written consent of BIDDER. BIDDER may, subject to consent of
SELLER which may not be unreasonably withheld or delayed, assign any or
all of its rights and obligations hereunder, in whole or in part, to
one or more designees affiliated with BIDDER, and no such assignment
will relieve SELLER of any of its obligations under this Letter
Agreement.
14. SEVERABILITY. If any term, provision, covenant or restriction of this
Letter Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, that provision will be reformed as a
valid provision to reflect as closely as possible the original
provision giving maximum effect to the intent of the Parties, or if
that cannot be done, will be severed from this Letter Agreement without
affecting the validity or enforceability of the remaining provisions.
15. AMENDMENT; WAIVER. This Letter Agreement may be amended only by a
written instrument signed by each of the parties hereto. Any provision
of this Letter Agreement may be waived only by a written instrument
signed by the party or parties to be bound thereby.
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If the foregoing correctly sets forth your understanding with respect
to the matters described in this Letter Agreement, please indicate by executing
a copy of this Letter Agreement as provided below and returning the same to the
undersigned.
BCP CRYSTAL ACQUISITION GMBH & CO. KG
By: BCP MANAGEMENT GMBH
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
Title: Managing Director
Accepted and agreed to
this 15th day of December, 2003
KUWAIT PETROLEUM CORPORATION
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director-Finance,
Admin. & Int'l Relations
