Exhibit 5
BCP CRYSTAL ACQUISITION GMBH & CO. XX
Xxxxxxxxx, Xxxxxxxxxxx Xxxxxxxxx, XXX 00000
Geschaftsfuhrender Gesellchafter: BCP Management XxxX,
Xxxxxxxxx, Xxxxxxxxxxx Xxxxxxxxx, XXX 00000
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 Kronberg 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 Xxxxxxx Xxxxxxx, Xxxxxx Xxxx,
Xxxxxx;
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, BIDDER 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. BIDDER 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 BIDDER 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 BIDDER, 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 xxx xxxx xx
Xxxxxxxxx, Xxxxxxx.
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 Razzouqi
--------------------------------
Name: Xxxxx Razzouqi
Title: Managing Director-Finance,
Admin. & Int'l Relations
