Exhibit 4.3
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Service Agreement for
Members of the Board of Management
between
Celanese XX
Xxxxxxxxxxx Xxxxxxx 000
00000 Xxxxxxxx i. Ts.
represented by the Chairman of the Supervisory Board of Celanese AG,
Xx. Xxxxx Xxxxxxxx,
- hereinafter referred to as "Celanese AG" or the "Company" -
and
Xx. Xxxxx Xxxxxxxxxxx
- hereinafter Mr. Jakobsmeier and the Company together referred to as the
"Parties" or each of them individually referred to as the "Party" -
Mr. Jakobsmeier has been appointed a Member of the Board of Management of
Celanese AG by a resolution of the Supervisory Board on October 21, 2004. With
effect as of November 1, 2004, the following service agreement (hereinafter
referred to as the "Service Agreement" or the "Agreement") shall be agreed
between the Company and Mr. Jakobsmeier by replacing at
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the same time all earlier agreements, except for the termination agreement dated
June 25, 2004:
I. Duties of the Member of the Board of Management
1. Mr. Jakobsmeier will perform his activity as a Member of the Board of
Management in accordance with the provisions of the law, the Articles of
Association of the Company and the Rules of Procedure for the Board of
Management. He will devote his professional energies exclusively to the
Company. The following provisions of this Section of this Agreement do not
affect legally justified restrictions of other activities Mr. Jakobsmeier
may perform.
2. The acceptance of any other activity outside the private area (privater
Bereich) - irrespective of whether it is paid or pro xxxx - requires the
prior approval of the Chairman of the Supervisory Board which may be
withdrawn at anytime. This applies in particular to the acceptance of
mandates to other supervisory boards, managing director activities
(Geschaftsfuhrungstatigkeiten) and similar positions, as well as regarding
expert reports, publications and lectures to the extent that the Company's
interests may be affected.
3. Should the Supervisory Board wish so, Mr. Jakobsmeier will accept
supervisory board mandates and similar positions without any remuneration in
companies in which Celanese AG is directly or indirectly participated, as
well as any activity in associations and similar bodies to which Celanese
belongs owing to the nature of its business activity. Mr. Jakobsmeier
undertakes, that on the termination of this Service Agreement or, in case
the Supervisory Board wishes at an earlier time, Mr. Jakobsmeier will retire
from aforementioned mandates that he has accepted in the interest of the
Company.
4. During the appointment Mr. Jakobsmeier will not participate in any company
that competes with Celanese AG or which maintains essential business
relations with Celanese AG. A shareholding which allows no influence
regarding the executive bodies of the relevant company is not considered as
participation within the meaning of this clause. A possibility to influence
listed companies shall be understood for purposes of this Agreement when
having reached 5 % of the voting rights.
5. Mr. Jakobsmeier is obliged not to use any knowledge he obtains as a result
of his Board of Management activity for stock exchange or other speculative
transactions.
Service Agreement of Mr. Jakobsmeier 3
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6. Mr. Jakobsmeier is further obliged to assign to the Company the entire
results of his work as the exclusive property of the Company without special
remuneration.
7. The confidentiality obligation of Section 93 of the German Stock Corporation
Act (Aktiengesetz) applies after the end of Mr. Jakobsmeier's service term.
8. Mr. Jakobsmeier will treat all documentation relating to the Company, as
well as all business memoranda including electronic data as the Company's
property. Mr. Jakobsmeier will preserve them carefully and at the
termination of his service term Mr. Jakobsmeier will hand them over to the
Chairman of the Supervisory Board or his appointee or delete them without
being specially requested to do so. In reasonable cases the Supervisory
Board may release Mr. Jakobsmeier from this obligation, e.g. in case he
needs such documentation as regards governmental or other regulatory
inquiries.
II. Compensation
1. From November 1, 2004 onwards, Mr. Jakobsmeier receives the following
income:
a) a fixed annual salary of (euro) 350,000-- gross (in words: three hundred
fifty thousand euro), to be paid monthly in arrears;
b) an annual bonus which is subject to reaching the economic and personal
objectives agreed by the Personnel and Compensation Committee of the
Supervisory Board with Mr. Jakobsmeier and which amounts to 80% of the
annual salary at target performance. The bonus is to be paid once a year
according to a separate regulation to be resolved by the Personnel and
Compensation Committee of the Supervisory Board in each case. Should Mr.
Jakobsmeier leave during a year, a pro-rata bonus payment will be made
for the period served.
2. Should Mr. Jakobsmeier die during the term of this Service Agreement, his
widow and his unmarried legitimate children, if and as long as they have not
reached the age of 21 or if and as long as they are in education and have
not reached the age of 27, have a right as joint and several creditors to an
unreduced granting of monthly installments of the annual salary according to
Section II. 1. a.) of this Agreement for the three months following the
month in which the death occurred, however, at the latest until the planned
end of the Service Agreement; and in addition a pro rata amount of the
annual bonus earned according to Section II. 1. b.) of this Agreement.
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3. Mr. Jakobsmeier's gross compensation shall be reduced by the amount of the
gross income Mr. Jakobsmeier receives in respect of supervisory board
mandates or similar positions in companies in which the Company has a direct
or indirect holding.
III. Duration of the Contract
1. The Service Agreement becomes effective on November 1, 2004 and shall apply
until October 31, 2006.
2. During this term the Agreement may be terminated by either Party only for
cause.
3. No later than 10 months prior to the end of his Service Agreement it shall
be discussed with Mr. Jakobsmeier whether and under which conditions the
contractual relationship and the activity as Member of the Board of
Management will be continued. At least 6 months prior to the expiry of the
Service Agreement, a statement regarding the reappointment of Mr.
Jakobsmeier as Member of the Board of Management shall be made to Mr.
Jakobsmeier by the Chairman of the Supervisory Board.
4. In case the appointment of Mr. Jakobsmeier is withdrawn prior to October 31,
2006, the Service Agreement with Mr. Jakobsmeier ends at the same time with
the expiry of the appointment. In this case the payment obligations arising
from the Service Agreement up to the originally agreed upon expiration of
the Service Agreement shall be fully met. Following the revocation of the
appointment, the Supervisory Board is entitled to release Mr. Jakobsmeier
IV. Inventions / Undertaking to refrain from competitive activity
1. Mr. Jakobsmeier will report to and offer to the Company his inventions
attributable to work following his appointment to the Board of Management as
long as he is receiving a salary or benefits (Versorgungsleistungen) from
the Company. The inventions will be treated by the Company in accordance
with the regulations of the law on employee inventions.
2. The Company reserves the right to agree with Mr. Jakobsmeier
post-contractual competition ban (nachvertragliches Wettbewerbsverbot).
V. Pension
1. Mr. Jakobsmeier's membership in the Hoechst Group Employee Pension Plan
(Pensionskasse der Mitarbeiter der Hoechst-Gruppe VvaG) shall be continued.
The consent given to Mr. Jakobsmeier by Celanese AG for shall continue
unchanged. Mr.
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Jakobsmeier shall assign to Celanese AG that part of his net salary that,
pursuant to the General Insurance Terms and Conditions of the Hoechst Group
Employee Pension Plan, is to be deducted monthly as a contribution.
2. The early retirement arrangement agreed upon as of June 25, 2004 shall, with
the exception of the term commencement, remain in effect unchanged. Instead
of becoming effective on April 1, 2006, the payments pursuant to such
arrangement shall become due on November 1, 2006 upon the expiration of the
Service Agreement on October 31, 2006.
VII. Miscellaneous
1. For the duration of his employment the Company will provide Mr. Jakobsmeier
with an upper-range BMW/Mercedes or equivalent make of company car, and will
pay the tax chargeable for providing this as a benefit with monetary value.
2. The Company will pay the costs of Mr. Jakobsmeier's tax consultant up to and
including the 2006 tax year.
3. For the duration of the Service Agreement the Company will conclude an
accident insurance for Mr. Jakobsmeier with the following insured sums:
(euro) 1,022,583.76 for death
(euro) 1,022,583.76 for disability
(euro) 10,225.84 for medical treatment costs
4. The Company concludes for the Members of the Board of Management a Directors
& Officers Insurance and bears the costs of this insurance. This insurance
covers the activity of Mr. Jakobsmeier as Member of the Board of Management
of Celanese AG as well as further activities, which Mr. Jakobsmeier performs
in the interest of the Company. Such activities of Mr. Jakobsmeier could be
e.g. board memberships in companies of the group or activities in other
companies in the meaning of Section I. 3., in associations or a service in
an honorary capacity (ehrenamtliche Tateigkeit). In compliance with the
recommendation of the German Corporate Governance Code the Directors &
Officers Insurance shall include a certain deductible (Selbstbehalt) that
would be the liability of Mr. Jakobsmeier
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X. Concluding provisions
1. If any provision of this Agreement should be partly or wholly invalid or
subsequently loose its legal validity, this shall not affect the validity of
the remaining provisions. The invalid provision shall, as far as legally
permissible, be replaced by another, appropriate, provision whose economic
effect comes closest to what the Parties wished or would have wished if they
had taken into consideration the invalidity of the original provision.
2. Amendments and additions to this Agreement need to be in writing. This
requirement cannot be replaced by oral agreements. The German version of
this Agreement shall be authoritative for interpreting this Agreement.
3. This Agreement shall be governed by German law.
4. The place of fulfillment for all performances deriving out of this Agreement
is the seat of the Company. The seat of the Company under Section 38 Subsec.
3 No. 2 of the German Civil Procedure Code (Zivilprozessordnung) shall be
agreed as the place of jurisdiction.
Kronberg i. Ts., December 8, 2004
Celanese AG
/s/ Xx. Xxxxx Xxxxxxxx /s/ Xx. Xxxxx Xxxxxxxxxxx
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Xx. Xxxxx Xxxxxxxx Xx. Xxxxx Xxxxxxxxxxx
This translation of this Agreement into English has been prepared for
convenience purposes. The German text is authoritative.
The Registrant hereby represents that the above English translation is a fair
and accurate English translation of the Articles of Association of Celanese AG.
Celanese AG
/s/ Xx. Xxxxxxx Kaffanke
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Xx. Xxxxxxx Kaffanke
