STOCK PURCHASE AGREEMENT
Exhibit
(d)(1)
STOCK PURCHASE AGREEMENT (this “Agreement”)
dated as of March 2, 2007, by and among Blackstone Capital
Partners (Cayman) Ltd. 1, Blackstone Capital Partners
(Cayman) Ltd. 2 and Blackstone Capital Partners (Cayman) Ltd. 3
(each, a “Seller” and collectively, the
“Sellers”), Celanese Corporation, a Delaware
corporation (“Celanese”), and Celanese
International Holdings Luxembourg S.à x.x., a Luxembourg
limited liability company and a wholly owned subsidiary of
Celanese (“CIH” and together with Celanese,
“Purchaser”).
RECITALS
WHEREAS, as of the date hereof, Sellers collectively own of
record 22,343,277 shares of Celanese’s Series A
common stock, par value $0.0001 (the “Common
Stock”), which constitutes approximately 14% of the
total issued and outstanding shares of Common Stock;
WHEREAS, Celanese intends, but has not made any public
announcement of such intention, to effect a restructuring on
behalf of itself and its subsidiaries (the
“Restructuring”), including the refinancing of
the existing credit agreement, conducting two debt tender offers
for outstanding senior discount notes and senior subordinated
notes and conducting a public modified Dutch auction tender
offer, through CIH, commencing on or about March 6, 2007
for up to 11,279,243 shares of its outstanding Common Stock
at prices ranging from $28.00 to $30.50 per share pursuant
to the terms and conditions set forth in the draft Offer to
Purchase, dated March 6, 2007 (the “Offer to
Purchase”), substantially in the form attached hereto
as Annex A (the “Tender Offer”), such
amount, when added to the shares purchased under this Agreement,
to equal, in the aggregate, a target amount of $400 million
of shares of Common Stock;
WHEREAS, Sellers have determined that they will not exercise
their right to tender any of their shares of Common Stock in the
Tender Offer; and
WHEREAS, subsequent to the date of expiration of the Tender
Offer (the “Expiration Date”), Sellers desire
to sell to Purchaser a pro rata portion of Sellers’ shares
based on the total number of shares tendered and accepted for
purchase in the Tender Offer in a manner more specifically
described below.
NOW, THEREFORE, in consideration of the premises, the
representations, warranties and covenants contained herein, and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
AGREEMENT
1. Agreement Not to Tender the Pro Rata Shares in the
Tender Offer. In consideration of
Purchaser’s willingness to purchase the Pro Rata Shares (as
defined below) in accordance with the provisions of
Section 2 hereof, Sellers hereby agree that from the
date of commencement of the Tender Offer through the Expiration
Date (the
“Lock-up
Period”), Sellers will not directly or indirectly,
including by guaranteed delivery, tender in the Tender Offer, or
otherwise sell, pledge, hypothecate or dispose of any shares of
Common Stock owned by Sellers (including without limitation, any
shares of Common Stock which may be deemed to be beneficially
owned by any Seller in accordance with the rules and regulations
of the Securities and Exchange Commission (the
“SEC”), and any shares of Common Stock which
may be issued upon the vesting
and/or
exercise of any stock options, restricted stock or warrants, or
upon conversion or exchange of any convertible or exchangeable
securities or any rights, warrants, options or other securities
that are convertible into, or exercisable or exchangeable for
Common Stock).
2. Purchase and Sale of the Pro Rata Shares; Waiver
of Fees.
2.1 Purchase and Sale of the Pro Rata Shares.
(a) Subject to the completion of the Tender Offer as set
forth below and pursuant to the terms and conditions of this
Agreement, Sellers agree to sell to Purchaser, and Purchaser
agrees to purchase from Sellers 1,835,511 shares of Common
Stock; provided, however, that if Purchaser
increases or decreases the number of shares subject to purchase
in the Tender Offer from 11,279,243 (any such change in the
amount purchased, a “TO Share Adjustment”), the
aggregate number of shares of Common Stock to be sold by Sellers
to Purchaser shall be increased or decreased, respectively, by
an amount equal to the TO Share Adjustment multiplied by a
fraction, the numerator of which is 22,343,277 and the
denominator of which is 137,299,786 (representing the percentage
of the outstanding shares of Common Stock held of record by
Sellers divided by the total number of
outstanding shares of Common Stock held of record as of the date
hereof by all stockholders of Purchaser other than the Sellers)
(the amount of shares sold by Sellers and purchased by
Purchaser, inclusive of any adjustment, if applicable, the
“Pro Rata Shares”).
(b) The allocation of the Pro Rata Shares to be sold by
Sellers pursuant to this Section 2 shall be pro rata
based on the number of shares of Common Stock held of record by
each Seller, rounded to the nearest whole share, or in such
other proportion as Sellers may agree; provided,
however, that Sellers must notify Purchaser of such
allocation at least one business day prior to the Closing Date
(as defined below).
2.2 Purchase Price.
(a) The purchase price per share to be paid by Purchaser
for the Pro Rata Shares shall be an amount equal to the per
share purchase price paid by Purchaser for the shares of Common
Stock validly tendered and accepted for purchase by Purchaser in
the Tender Offer (the “Per Share Purchase
Price”).
(b) The aggregate purchase price for the Pro Rata Shares
(the “Aggregate Purchase Price”), shall be an
amount equal the Per Share Purchase Price, multiplied
by, the total number of Pro Rata Shares purchased from
Sellers.
3. Closing. Subject to the terms
and conditions hereof, the purchase and sale of the Pro Rata
Shares contemplated by this Agreement (the
“Closing”) will take place at the offices of
Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000-0000
at 10:00 a.m. New York City time on the eleventh business
day following the Expiration Date (the “Closing
Date”), or at such other later date or place as the
parties shall mutually agree. At the Closing, (i) Sellers
will deliver to Purchaser the Pro Rata Shares to be purchased by
Purchaser and (ii) Purchaser shall deliver the Aggregate
Purchase Price to Sellers by wire transfer of immediately
available funds to one or more accounts specified by Sellers at
least one business day prior to the Closing.
4. Representations and Warranties of
Sellers. In order to induce Purchaser to
enter into this Agreement, each Seller hereby represents and
warrants to Purchaser as follows:
4.1 Organization and Corporate Power;
Authorization. Each of the Sellers has the
requisite power and authority to execute, deliver and perform
this Agreement and to sell the Pro Rata Shares. This Agreement
is the legal, valid and, assuming due execution by the other
parties hereto, binding obligations of each of the Sellers,
enforceable against each of the Sellers in accordance with its
terms except to the extent that the enforceability thereof may
be limited by (i) principles of public policy,
(ii) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the
enforcement of creditors’ rights generally, and
(iii) rules of law governing the availability of equitable
remedies.
4.2 Ownership of Pro Rata
Shares. Sellers collectively own of record
the number of issued and outstanding shares of Common Stock set
forth in the Recitals to this Agreement. The Pro Rata Shares to
be sold to Purchaser by such Sellers when delivered to Purchaser
shall be free and clear of any liens, claims or encumbrances,
including rights of first refusal and similar claims except for
restrictions of applicable state and federal securities laws.
There are no restrictions on the transfer of such Pro Rata
Shares imposed by any shareholder or similar agreement or any
law, regulation or order, other than applicable state and
federal securities laws.
4.3 No Violation; No Consent. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby
(a) will not constitute a breach or violation of or default
under any judgment, decree or order or any agreement or
instrument of any Seller or to which any Seller is subject,
(b) will not result in the creation or imposition of any
lien upon the Pro Rata Shares to be sold by any Seller, and
(c) will not require the consent of or notice to any
governmental entity or any party to any contract, agreement or
arrangement with any Seller.
4.4 Brokerage. There are no claims
for brokerage commissions or finder’s fees or similar
compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or
on behalf of such Sellers.
5. Representations and Warranties of
Purchaser. In order to induce Sellers to
enter into this Agreement, Purchaser hereby represents and
warrants as follows:
5.1 Organization and Corporate Power;
Authorization. Celanese is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware and CIH is a limited liability
company duly formed and validly existing under the laws of
Luxembourg. Purchaser has the requisite power and authority to
execute, deliver and perform this Agreement
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and to acquire the Pro Rata Shares. Purchaser has sufficient
capital to purchase the Pro Rata Shares hereunder and to
purchase the shares of Common Stock to be purchased pursuant to
the Tender Offer in each case in compliance with
Section 160 of the Delaware General Corporation Law as it
applies to Celanese. The execution, delivery and performance of
this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been approved by
Purchaser. This Agreement and any other agreements, instruments,
or documents entered into by Purchaser pursuant to this
Agreement have been duly executed and delivered by Purchaser and
are the legal, valid and, assuming due execution by the other
parties hereto, binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms except to the
extent that the enforceability thereof may be limited by
(i) principles of public policy, (ii) applicable
bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of
creditors’ rights generally, and (iii) rules of law
governing the availability of equitable remedies.
5.2 No Violation; No Consent. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby
(a) will not constitute a breach or violation of or default
under any judgment, decree or order or any agreement or
instrument of Purchaser or to which Purchaser is subject, and
(b) will not require the consent of or notice to any
governmental entity or any party to any contract, agreement or
arrangement with Purchaser.
5.3 Brokerage. There are no claims
for brokerage commissions or finder’s fees or similar
compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or
on behalf of Purchaser.
5.4 Capital Stock. The authorized
and outstanding capital stock of Celanese, as of March 1,
2007, consists of 159,643,063 shares of Common Stock and
9,600,000 shares of Preferred Stock.
6. Conditions to Purchaser’s
Obligations. The obligations of Purchaser
under Section 2 of this Agreement to purchase the
Pro Rata Shares at the Closing from each Seller are subject to
the fulfillment as of the Closing of each of the following
conditions unless waived by Purchaser in accordance with
Section 10.4:
6.1 Representations and
Warranties. The representations and
warranties of such Seller contained in Section 4
shall be true and correct on and as of the date of the Closing
with the same effect as though such representations and
warranties had been made on and as of the date of Closing.
6.2 Performance. Such Seller shall
have performed and complied in all material respects with all
agreements, obligations, and conditions contained in this
Agreement that are required to be performed or complied with by
it on or before the date of Closing.
6.3 Delivery of Pro Rata
Shares. Such Seller shall have delivered the
Pro Rata Shares to be sold by it at the Closing, free and clear
of any liens, claims or encumbrances, along with all stock
powers, assignments or any other documents, instruments or
certificates necessary for a valid transfer.
6.4 Further Assurances. No
governmental authority shall have advised or notified Purchaser
that the consummation of the transactions contemplated hereunder
would constitute a material violation of any applicable laws or
regulations, which notification or advice shall not have been
withdrawn after the exhaustion of Purchaser’s good faith
efforts to cause such withdrawal.
7. Conditions to Each Seller’s
Obligations. The obligations of each Seller
under Section 2 of this Agreement to sell the Pro
Rata Shares at the Closing are subject to the fulfillment as of
the Closing of each of the following conditions unless waived by
such Seller in accordance with Section 10.4:
7.1 Representations and
Warranties. The representations and
warranties of Purchaser contained in Article 3 shall be
true and correct as of the date of Closing with the same effect
as though such representations and warranties had been made on
and as of the date of Closing.
7.2 Performance. Purchaser shall
have performed and complied in all material respects with all
agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by
it on or before the date of Closing.
7.3 Payment of Purchase
Price. Purchaser shall have delivered the
Aggregate Purchase Price to be paid by Purchaser to the Sellers.
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7.4 Further Assurances. No
governmental authority shall have advised or notified the
Sellers that the consummation of the transactions contemplated
hereunder would constitute a material violation of any
applicable laws or regulations, which notification or advice
shall not have been withdrawn after the exhaustion of the
Sellers’ good faith efforts to cause such withdrawal.
7.5 Successful Completion of Tender
Offer. The Tender Offer has been successfully
completed in accordance with the Offer to Purchase and Purchaser
has purchased pursuant to the Tender Offer shares at a price not
less than the low end of the purchase price range as set forth
in the Offer to Purchase attached hereto as Annex A.
8. Covenants.
8.1 No Purchase of Common
Stock. Until eleven business days following
the Expiration Date of the Tender Offer, each Seller agrees that
it will not, directly or indirectly, purchase any shares of
Common Stock.
8.2 No Sale of Common
Stock. Except as contemplated hereunder, from
the date hereof until the Closing or the termination of this
Agreement, each Seller agrees that it will not, directly or
indirectly, sell any shares of Common Stock.
8.3 Closing Conditions. Sellers
and Purchaser shall use their commercially reasonable efforts to
ensure that each of the conditions to Closing are satisfied.
9. Survival of Representations and Warranties;
Limitation on Liability.
9.1 Survival of Representations and
Warranties. All representations and
warranties hereunder shall survive the Closing.
9.2 Limitation on
Liability. Notwithstanding anything to the
contrary contained in this Agreement or any other agreements,
instruments or other documents related to the Tender Offer, in
no event shall any Seller’s liability for breach of the
representations, warranties and covenants exceed the portion of
the Aggregate Purchase Price received by such Seller.
10. Miscellaneous.
10.1 Adjustments. Whenever a
particular number is specified herein, including, without
limitation, number of shares or price per share, such number
shall be adjusted to reflect any stock dividends, stock-splits,
reverse stock-splits, combinations or other reclassifications of
stock or any similar transactions and appropriate adjustments
shall be made with respect to the relevant provisions of this
Agreement so as to fairly and equitably preserve, as far as
practicable, the original rights and obligations of Purchaser
and each of the Sellers under this Agreement.
10.2 Parties in Interest;
Assignment. All covenants, agreements,
representations, warranties and undertakings in this Agreement
made by and on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. This
Agreement and the rights and obligations contemplated hereby may
not be assigned, in part or in whole, by Purchaser or by any
Seller.
10.3 Third Party
Beneficiaries. The parties hereto intend that
this Agreement shall not benefit or create any right or cause of
action in, or on behalf of, any person, other than the parties
hereto and no person, other than the parties hereto, shall be
entitled to rely on the provisions of this Agreement in any
action, suit, proceedings, hearing or other form.
10.4 Amendments and
Waivers. Except as set forth in this
Agreement, changes in or additions to this Agreement may be
made, or compliance with any term, covenant, agreement,
condition or provision set forth herein may be omitted or waived
(either generally or in a particular instance and either
retroactively or prospectively), by a writing executed by each
of the parties hereto; provided, however, that any
material amendment to this Agreement must also be approved by a
majority of the directors on the Board of Directors of
Purchaser, including a majority of directors that have not been
nominated or elected by Sellers or an affiliate of any Seller.
10.5 Cooperation. Purchaser and
each of the Sellers shall, from and after the date hereof,
cooperate in a reasonable manner to effect the purposes of this
Agreement.
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10.6 Governing Law. This Agreement
shall be governed by and construed under the laws of the State
of Delaware without regard to its
conflicts-of-laws
principles. Any legal action or other legal proceeding relating
to this Agreement or the enforcement of any provision of this
Agreement may be brought or otherwise commenced in any state or
federal court located in the State of Delaware. Each party
hereto agrees to the entry of an order to enforce any
resolution, settlement, order or award made pursuant to this
Section 10.6 by the state and federal courts located in the
State of Delaware and in connection therewith hereby waives, and
agrees not to assert by way of motion, as a defense, or
otherwise, any claim that such resolution, settlement, order or
award is inconsistent with or violative of the laws or public
policy of the laws of the State of Delaware or any other
jurisdiction.
10.7 Notices. All notices,
demands, requests, consents or approvals (collectively,
“Notices”) required or permitted to be given
hereunder or which are given with respect to this Agreement
shall be in writing and shall be personally delivered or mailed,
registered or certified, return receipt requested, postage
prepaid (or by a substantially similar method), or delivered by
a reputable overnight courier service with charges prepaid, or
transmitted by hand delivery or facsimile, addressed as set
forth below, or such other address (and with such other copy) as
such party shall have specified most recently by written notice.
Notice shall be deemed given or delivered on the date of service
or transmission if personally served or transmitted by
facsimile. Notice otherwise sent as provided herein shall be
deemed given or delivered on the third business day following
the date mailed or on the next business day following delivery
of such notice to a reputable overnight courier service.
To Purchaser:
| Celanese Corporation. |
0000 Xxxx XXX Xxxxxxx
Xxxxxx, XX
00000-0000
Facsimile No.: 000 000 0000
Attn: Xxxxxx X. Xxxx
To the Sellers:
| x/x Xxxxxxx |
X.X. Xxx 000 GT.
Xxxx Street
Xxxxxx Town, Grand Cayman, Cayman Islands
Attention: Xxxxxxxx Xxxxxxx
with a copy to
| Xxxxxxx Xxxxxxx & Xxxxxxxx LLP |
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.:
(000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
10.8 Effect of Headings and Other
Matters. The section and paragraph headings
herein are for convenience only and shall not affect the
construction hereof.
10.9 Entire Agreement. This
Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter
hereof and supersedes all prior written or oral understandings
or agreements among or between the parties hereto. Each Seller
hereby agrees that, to the extent the terms of this Agreement
conflict with, or are in any way inconsistent with, any
registration rights agreement or other similar agreement
relating to the rights of each such Seller as a holder of shares
of Common Stock, this Agreement supersedes and controls over
such agreement or agreements.
10.10 Severability. The invalidity
or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
10.11 Counterparts. This Agreement
may be executed in separate counterparts, including by facsimile
or similar transmission, each of which shall be an original and
all of which taken together shall constitute one and the same
agreement.
10.12 Successors and
Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successor and assigns of
the parties hereto.
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10.13 Delays or Omissions. It is
agreed that no delay or omission to exercise any right, power or
remedy accruing to any party upon any breach or default of any
other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any
such breach or default, or any acquiescence therein, or of any
similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. It
is further agreed that any waiver, permit, consent or approval
of any kind or character of any breach or default under this
Agreement, or any waiver of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the
extent specifically set forth in writing, and that all remedies,
either under this Agreement, by law or otherwise, shall be
cumulative and not alternative.
10.14 Termination.
Notwithstanding anything contained in this Agreement to the
contrary, this Agreement may be terminated (i) at any time
prior to the Closing by the mutual written consent of Celanese
and the Sellers and (ii) by the Sellers in their sole
discretion by written notice to Celanese if (A) the Tender
Offer is terminated or (B) the Closing does not occur by
May 1, 2007.
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IN WITNESS WHEREOF, the undersigned parties have duly executed
and delivered this Agreement as of the date first written above.
|
PURCHASER:
|
SELLERS:
|
|
| CELANESE CORPORATION |
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD. 1 |
|
| By: /s/ XXXXX X. XXXXX | By: /s/ XXX XXXXXXX | |
|
Name: Xxxxx X.
Xxxxx
|
Name: Xxx Xxxxxxx | |
|
Title: Assistant
Secretary
|
Title: Authorized Person | |
|
CELANESE INTERNATIONAL HOLDINGS LUXEMBOURG S.À X.X., |
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD. 2 |
|
|
By: /s/ XXXXX X. XXXXXX
|
By: /s/ XXX XXXXXXX | |
|
Name: Xxxxx X. Xxxxxx
|
Name: Xxx Xxxxxxx | |
|
Title: Manager
|
Title: Authorized Person | |
|
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD. 3 |
||
| By: /s/ XXX XXXXXXX | ||
| Name: Xxx Xxxxxxx | ||
| Title: Authorized Person |
Signature Page to Stock Purchase Agreement
7
ANNEX A
Offer to
Purchase
