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EXHIBIT 1.1
CELANESE AG
4,155,788 SHARES
(NO PAR VALUE PER SHARE)
REDISTRIBUTION AGREEMENT
------------------------
October __, 1999
CREDIT SUISSE FIRST BOSTON DRESDNER BANK AG
(EUROPE) LIMITED Global Corporate Finance
One Cabot Square Transaction Services
Xxxxxx X00 0XX 60301 Frankfurt am Main,
United Kingdom Germany
1. Introductory. Celanese AG, a company existing under the laws of Germany
(the "Company") became an independent company in a demerger from Hoechst
Aktiengesellschaft ("Hoechst"), on or about October 22, 1999 (the "Demerger").
Pursuant to the Demerger, Hoechst shareholders will receive all of Celanese AG's
outstanding shares, no par value per share (the "Shares"). The Company has
retained the redistribution managers named in Schedule A hereto (the
"Redistribution Managers"), including Credit Suisse First Boston (Europe)
Limited ("CSFB") and Dresdner Bank AG ("DB" and, together with CSFB, the "Joint
Global Coordinators and Bookrunners"), each of whom is a party to this
Agreement, to procure purchasers for the Shares that Hoechst shareholders or
holders of Hoechst American Depositary Shares (the "Selling Shareholders") will
receive in the Demerger and elect to sell ("Redistribution Shares") through the
Redistribution Managers (the "Redistribution"). The Redistribution will occur in
a public offering in the United States that is registered under the Securities
Act of 1933, as amended (the "Act") and outside the United States in reliance on
Regulation S under the Act to persons other than U.S. persons, as defined in
Regulation S. The Redistribution Shares to be sold as part of the Redistribution
in Germany will be sold in a public offering under German law, and in the rest
of the world in private offerings. The Company hereby agrees with the several
Redistribution Managers as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Redistribution Managers that:
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(a) The Company has prepared and filed (i) with the Frankfurt Stock
Exchange (the "FSE") a German selling and listing prospectus relating to
the Redistribution Shares and the Shares; and (ii) with the Securities and
Exchange Commission (the "Commission") a registration statement on Form F-1
(Registration No. 333-87889) covering the registration under the Act of the
Redistribution Shares being sold in the United States, including the
related preliminary prospectus, or prospectuses, and either (A) has
prepared and proposes to file, prior to the effective date of such
registration statement (the "Effective Time"), an amendment to such
registration statement, including a final prospectus, promptly after
execution and delivery of this Agreement or (B) if the Company has elected
to rely upon Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the Act (the "Rules and Regulations"), will prepare and
file a prospectus, in accordance with the provisions of Rule 430A and Rule
424(b) ("Rule 424(b)") of the Rules and Regulations. The information, if
any, included in such prospectus that was omitted from the prospectus
included in such registration statement at the Effective Time but that is
deemed, pursuant to paragraph (b) of Rule 430A, to be part of such
registration statement at the Effective Time is referred to herein as the
"Rule 430A Information." Each prospectus used before the Effective Time,
and any prospectus that omits the Rule 430A Information that is used after
the Effective Time and prior to the execution and delivery of this
Agreement, is herein called a "Preliminary Prospectus." Such registration
statement, including the exhibits thereto, as amended at the Effective Time
and including the Rule 430A Information, if applicable, is herein called
the "Registration Statement." The prospectus included in the Registration
Statement, including the Rule 430A Information, if applicable, is herein
called the "U.S. Prospectus," any preliminary U.S. Prospectus is called a
"Preliminary U.S. Prospectus," the form of selling and listing prospectus
relating to the Redistribution Shares and the Shares filed with the FSE is
herein called the "German Prospectus," and the form of prospectus relating
to private offerings in the rest of the world is herein called the
"International Prospectus," except that, if the final prospectus first
furnished to the Redistribution Managers after the execution of this
Agreement for use in connection with the offering of the Redistribution
Shares differs from (i) the prospectus included in the Registration
Statement (whether or not such prospectus is required to be filed pursuant
to Rule 424(b)); or (ii) an earlier dated German Prospectus or
International Prospectus, the terms "U.S. Prospectus," "German Prospectus,"
and "International Prospectus," shall refer to the final version of each of
such prospectuses first furnished to the Redistribution Managers after the
execution of this Agreement for such use. In all cases, the term
"Preliminary Prospectus" shall collectively refer to any preliminary U.S.
Prospectus (the "U.S. Preliminary Prospectus"), any preliminary German
Prospectus (the "German Preliminary Prospectus") and any preliminary
International Prospectus (the "International Preliminary Prospectus"). In
all cases, the term "Prospectus" shall collectively refer to the final U.S.
Prospectus, final German Prospectus and final International Prospectus and
any amendments or supplements thereto.
(b) At the Effective Time, and at all times subsequent thereto up to
the Closing Date (as defined in Section 4), (i) the Registration Statement
and any
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amendments thereto will comply in all material respects with the
requirements of the Act and the Rules and Regulations; (ii) neither the
Registration Statement nor any amendment thereto will contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and (iii) neither the Prospectus nor any amendment or
supplement thereto will include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Redistribution Manager expressly for use in the Registration Statement or
the Prospectus.
(c) To the best of the Company's knowledge, after consultation with
the Commission`s staff and oral confirmation from CT Corporation System, as
agent for service of process, no stop order suspending the effectiveness of
the Registration Statement is in effect (if it has been declared
effective), and no proceedings for such purpose are pending before or
threatened by the Commission, and any request on the part of the Commission
for additional information has been complied with.
(d) The Company has been duly organized and is validly existing as a
corporation under the laws of Germany, with power and authority to own its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
such failures to be so qualified as would not, individually or in the
aggregate, result in a material adverse effect on the financial condition,
business, properties or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) Each of the subsidiaries of the Company listed in Schedule B
hereto (the "Material Subsidiaries") has been duly incorporated and is an
existing corporation under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each Material Subsidiary is duly qualified to do business as a foreign
corporation in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
such failures to be so qualified as would not, individually or in the
aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock of each Material Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each Material Subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects,
except where the failure to be so owned would not have a Material Adverse
Effect.
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to
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require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(g) The Demerger has been registered in the commercial register
(Handelsregister), and the Shares are duly and validly issued, fully paid
and non-assessable and in all material respects conform to the description
thereof contained in the Prospectus in the section entitled "Description of
Securities to Be Registered."
(h) The Shares have been approved for listing on the New York Stock
Exchange (the "NYSE") and for official quotation on the FSE, subject to
official notice of issuance, and such approvals have not been withdrawn.
(i) This Agreement has been duly authorized, executed and delivered by
the Company, and the Company has full power and authority to engage in the
Redistribution, as contemplated by this Agreement.
(j) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
Redistribution except such as have been obtained and made under the laws of
Germany, the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and such as may be required under state securities or Blue
Sky laws in connection with the Redistribution; provided, however, that
this representation shall not apply to any such consents, approvals,
authorizations, orders, registrations or qualifications as may be required
by the laws of jurisdictions other than Germany and the United States.
(k) The execution, delivery and performance of this Agreement, and the
compliance with the terms and provisions of this Agreement, will not result
in a breach or violation of any of the terms and provisions of the
organizational documents of the Company or any subsidiary of the Company.
(l) The execution, delivery and performance of this Agreement, and the
compliance with the terms and provisions of this Agreement will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Material Subsidiary or any of their
properties, or any agreement, instrument or obligation to which the Company
or any such Material Subsidiary is a party or by which the Company or any
such Material Subsidiary is bound or to which any of the properties of the
Company or any such Material Subsidiary is subject, except for any such
breaches, violations or defaults which, individually or in the aggregate,
would not have a Material Adverse Effect.
(m) The Company and its Material Subsidiaries (i) possess adequate
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certificates, authorizations or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them,
except for such certificates, authorizations or permits the failure to
obtain which, will not, individually or in the aggregate, have a Material
Adverse Effect, and (ii) to the best of the Company's knowledge, have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its Material Subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(n) To the knowledge of the Company, no labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent or contemplated that is reasonably likely to have
a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, there are no pending or, to
the best of the Company's knowledge, threatened or contemplated actions,
suits or proceedings against or affecting the Company, any of its
respective subsidiaries or properties that, if determined adversely to the
Company or any of its respective subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement, or which otherwise would have a material adverse effect on the
Redistribution.
(p) Except as described in the Prospectus, (i) there are no
outstanding warrants or options issued by the Company to purchase any
shares of the capital stock of the Company, (ii) there are no statutory,
contractual, preemptive or other rights applicable to the Company to
subscribe for or to purchase any Shares from the Company that do not by
their terms terminate on or after the first day of trading of the Shares on
the NYSE or FSE (the "Trading Date"), and (iii) there are no restrictions
upon transfer of the Shares pursuant to the Company's organizational
documents (except for those applicable to registered shares under German
law and the Articles of Association of the Company).
(q) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued securities or granted options on
any securities, (ii) incurred any liabilities or obligations, direct or
contingent, other than those liabilities and obligations which,
individually or in the aggregate, would not have a Material Adverse Effect,
(iii) entered into any transactions not in the ordinary course of business
which would, individually or in the aggregate, have a Material Adverse
Effect or (iv) declared or paid any dividend on any class of its capital
stock.
(r) Neither the Company nor any of its Material Subsidiaries (i) is in
violation of its organizational documents, except for any defaults or
events that, individually or in the aggregate, would not have a Material
Adverse Effect, (ii) is in default in any material respect, and no event
has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or
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condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject,
except for any such defaults that would not, individually or in the
aggregate, have a Material Adverse Effect, or (iii) except for any
violations or failures to obtain that, individually or in the aggregate,
would not have a Material Adverse Effect, is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business.
(s) Except as disclosed in the Prospectus, to the best of the
Company's knowledge, neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances, owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would, individually or in the aggregate, have a Material Adverse Effect;
and the Company is not aware of any pending investigation which would
reasonably be expected to lead to such a claim.
(t) The combined financial statements and the related notes included
in the Registration Statement and the Prospectus present fairly, in all
material respects, the financial position of the Company as of the dates
shown and its combined results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a
consistent basis. The schedule included in the Registration Statement
presents fairly, when considered in relation to the combined financial
statements taken as a whole, the information required to be stated forth
therein.
(u) Except as disclosed in the Prospectus, since the date of the
latest audited combined financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and except as disclosed in the
Prospectus, since the date of the latest unaudited combined financial
statements included in the Prospectus there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the financial condition, business, properties or results
of operations of the Company and its subsidiaries taken as a whole.
(v) The Company is not and, after giving effect to the issuance of the
Shares as described in the Prospectus, will not be required to register as
an "investment company" under the Investment Company Act of 1940.
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(w) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Redistribution
Manager for a brokerage commission, finder's fee or other like payment in
respect of the Redistribution Shares.
3. Redistribution of Shares. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
each Redistribution Manager has, severally and not jointly, used its best
efforts to procure purchasers for all, or a portion of the Redistribution
Shares. The Redistribution Managers have arranged to redistribute 4,155,788
Redistribution Shares at the price of euro 16.00 per Redistribution Share (the
"Redistribution Price"). On the Trading Date, the Redistribution Managers shall
arrange for the purchase from the Selling Shareholders of all of the
Redistribution Shares which the Selling Shareholders are committed to sell at
the Redistribution Price and on the same date shall arrange for the sale to
purchasers of such Redistribution Shares at the same Redistribution Price.
Notwithstanding the foregoing sentence, (i) if the Redistribution Managers
procure purchasers for a number of Redistribution Shares that is less than the
number of Redistribution Shares which the Selling Shareholders are committed to
sell at the Redistribution Price, the Redistribution Managers shall arrange for
the purchase from the Selling Shareholders, on a pro rata basis, of the number
of such Redistribution Shares equal to the number of Redistribution Shares for
which the Redistribution Managers have procured purchasers, subject to
adjustment to avoid the sale of fractional Shares and (ii) if the Redistribution
Managers procure purchasers for a number of Redistribution Shares greater than
the number of Redistribution Shares which the Selling Shareholders are committed
to sell at the Redistribution Price, the allocation of the Redistribution Shares
to purchasers shall be at the discretion of the Joint Global Co-ordinators and
Bookrunners on behalf of the Redistribution Managers. The Redistribution Price
at which the Redistribution Shares are being redistributed is based on the price
at which the maximum number of Redistribution Shares could be redistributed, as
determined by the Joint Global Co-ordinators and Bookrunners in consultation
with the Company.
The Joint Global Co-ordinators and Bookrunners, on behalf of the
Redistribution Managers, will have sole discretion to determine and resolve any
questions about the validity, form, eligibility (including time of receipt) or
acceptance of any irrevocable commitments provided by the Selling Shareholders.
Their determination will be final and binding. The Joint Global Co-ordinators
and Bookrunners reserve the absolute right to reject irrevocable commitments
provided by the Selling Shareholders if they are not in the proper form or if
payment would, in the opinion of the Joint Global Co-ordinators and Bookrunners
or their counsel, be unlawful. The Joint Global Co-ordinators and Bookrunners
also reserve the right to waive any defect or irregularity in the irrevocable
commitments provided by the Selling Shareholders, and the Joint Global
Co-ordinators and Bookrunners' interpretations of the terms and conditions of
the Redistribution will be final and binding.
Each Redistribution Manager acknowledges that no action has been taken
by the Company that would permit the offer or sale of the Redistribution Shares
or the distribution of the Prospectus in any jurisdiction where action for that
purpose is required, other than the United
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States and Germany. The Company will not assume any responsibility with respect
to the right of any Redistribution Manager or other person to offer or sell the
Redistribution Shares or distribute the Prospectus in any jurisdiction except
under circumstances that will result in compliance with applicable law. Each
Redistribution Manager agrees for itself that it will obtain any consent,
approval or authorization required to offer or sell the Redistribution Shares or
to distribute the Prospectus under the laws or regulations of any jurisdiction,
other than the United States or Germany, where such Redistribution Manager
proposes to make offers or sales of Redistribution Shares or to distribute the
Prospectus.
4. Compensation of the Redistribution Managers. As compensation for the
services rendered by the Redistribution Managers pursuant to this Agreement, the
Company agrees to pay to each Redistribution Manager, for the number of
Redistribution Shares sold by such Redistribution Manager, selling commissions
in the amount of 2% of the Redistribution Price times the number of
Redistribution Shares allocated by the Joint Global Co-ordinators and
Bookrunners, in consultation with the Company, to each Redistribution Manager
(the "Selling Commissions"), provided that if the Selling Commissions so payable
to any Redistribution Manager are less than such Redistribution Manager's
Minimum Selling Commission (as defined below) the Company will pay such
Redistribution Manager its Minimum Selling Commission (as defined below). The
Minimum Selling Commissions payable to each Redistribution Manager are deutsche
xxxx 2 million to each of the Joint Global Co-ordinators and Bookrunners; and
deutsche xxxx 333,333 to each of the six Co-Lead Managers (as named in Schedule
A) (the "Minimum Selling Commissions"). The Company and the Joint Global
Co-ordinators and Bookrunners may request such information from the
Redistribution Managers as they deem necessary or appropriate for the purpose of
the foregoing consultation and determination, but the Joint Global Co-
ordinators' and Bookrunners' determination of the allocations to the
Redistribution Managers shall be final and binding. Payment of the Selling
Commissions and, if applicable, the Minimum Selling Commissions, shall be made
by the Company in same day funds by wire transfer at 9:30 a.m., October 27, 1999
(Frankfurt time) to accounts previously designated to the Company by the Joint
Global Co-ordinators and Bookrunners, or at such other time not later than seven
full business days after the Trading Date as the Company and the Joint Global
Co-ordinators and Bookrunners determine, such time being referred to as the
"Closing Date."
5. Certain Agreements of the Company. The Company agrees with the several
Redistribution Managers that:
(a) The Company will file the U.S. Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the
Registration Statement.
The Company will advise the Joint Global Co-ordinators and Bookrunners
promptly of any such filing pursuant to Rule 424(b).
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(b) The Company will advise the Joint Global Co-ordinators and
Bookrunners promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and, unless legally required, will
not effect such amendment or supplement without the Joint Global
Co-ordinators' and Bookrunners' consent, which will not be unreasonably
withheld; and the Company will also advise the Joint Global Co-ordinators
and Bookrunners promptly after it receives notice thereof, of the
effectiveness of the Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplement to the Registration Statement or the U.S.
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its
reasonable best efforts to prevent the issuance of any such stop order and
to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a U.S. Prospectus relating to the
Redistribution Shares is required to be delivered under the Act in
connection with the Redistribution by any Redistribution Manager or dealer,
any event occurs as a result of which the U.S. Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
or if for any other reason it is necessary at any time to amend the U.S.
Prospectus to comply with the Act, the Company will promptly notify the
Joint Global Co-ordinators and Bookrunners of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. The Company also will promptly prepare,
at its own expense, a conforming amendment or supplement to the German
Prospectus and the International Prospectus. Neither the Joint Global
Co-ordinators and Bookrunners consent to, nor the Redistribution Managers'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(d) The Company will furnish to the Redistribution Managers copies of
the Registration Statement (three of which will be signed and will include
all exhibits), each related Preliminary U.S. Prospectus, and, so long as a
U.S. Prospectus relating to the Redistribution Shares is required to be
delivered under the Act in connection with sales by any Redistribution
Manager or dealer, the U.S. Prospectus and all amendments and supplements
to such documents, in each case in such quantities as the Joint Global
Coordinators and Bookrunners reasonably request. The Company also will
furnish to the Redistribution Managers copies of each German Prospectus and
International Prospectus relating to and used in connection with the
Redistribution and all amendments and supplements to such documents, in
each case in such quantities as the Joint Global Coordinators and
Bookrunners each reasonably request. The U.S. Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Registration Statement. All other documents shall be
so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Redistribution
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Managers all such documents.
(e) The Company will promptly from time to time take such action as
the Joint Global Co-ordinators and Bookrunners may reasonably request to
qualify the Redistribution Shares for offer and sale under the securities
laws of such jurisdictions in the United States and Germany and to comply
with such laws of such jurisdictions for as long as may be necessary to
complete the Redistribution, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in the United States or any
other jurisdiction, and no such action shall be required if, as a result
thereof, the Company would be subject to taxation in any jurisdiction which
the Company is not currently so subject.
(f) During the period of five years hereafter, the Company will
furnish to the Redistribution Managers, as soon as practicable after the
end of each fiscal year and in accordance with applicable law, a copy of
its annual report (in English) to shareholders for such year; and the
Company will furnish to the Redistribution Managers (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
shareholders and (ii) from time to time, such other information concerning
the Company as the Joint Global Co-ordinators and Bookrunners may each
reasonably request.
(g) The Company will pay (i) all expenses incident to the performance
of its obligations under this Agreement and will reimburse the
Redistribution Managers (if and to the extent incurred by them) for any
filing fees, any fees and disbursements of counsel to the Registrar,
Co-Registrar and any Paying Agents (as defined in the Registration
Statement), (ii) for other reasonable and documented expenses to the extent
agreed to by the Company, which agreement shall not be unreasonably
withheld, incurred by the Redistribution Managers in connection with
qualification of the Redistribution Shares for sale and determination of
their eligibility for investment under the state securities or Blue Sky
laws of such states of the United States as the Joint Global Co-ordinators
and Bookrunners may reasonably request, (iii) for all expenses relating to
marketing activities agreed to by the Company incident to the
Redistribution, including but not limited to, expenses associated with the
procurement of purchasers, and (iv) for expenses incurred in distributing
the Preliminary Prospectus and the Prospectus (including any amendments and
supplements thereto) to the Redistribution Managers.
(h) The Company will pay any stamp, transfer or other similar tax
imposed by Germany or the United States in connection with (i) the
execution, delivery and performance of this Agreement, and (ii) the
execution, authentication, issuance, delivery and sale of the
Redistribution Shares or otherwise in connection with the Redistribution
Shares.
(i) The Company will indemnify and hold harmless the Redistribution
Managers against any documentary, stamp, registration or similar issuance
tax, including any interest or penalties, other than any interest or
penalties incurred as a result of the
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negligence of the Redistribution Managers, payable in Germany or the United
States on or in connection with the sale of the Redistribution Shares and
on the execution and delivery of this Agreement.
(j) The Company will not, without the prior written consent of the
Joint Global Co-ordinators and Bookrunners, directly or indirectly, offer,
sell, contract to sell or otherwise dispose of or otherwise enter into any
transaction (including a derivative transaction) having an economic effect
similar to a sale of, or announce the offering of, any of its Shares or any
securities which are convertible into or exchangeable for, or which
otherwise represent the right to acquire, its Shares for a period of six
months from the commencement of official trading of its Shares on the FSE.
The foregoing restrictions will not apply in the case of any securities
offered or sold pursuant to an employee benefit plan.
6. Conditions of the Obligations of the Redistribution Managers. The
obligations of the several Redistribution Managers to redistribute the
Redistribution Shares on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) The Redistribution Managers shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Registration Statement is subsequent to the execution
and delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to be
filed shortly prior to such Effective Time), of KPMG Deutsche
Treuhand-Gesellschaft Aktiengesellschaft Wirtschaftprufungsgesellschaft
(the "Auditors") in relation to the Company, in form and substance
satisfactory to the Joint Global Co-ordinators and Bookrunners, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and Prospectus.
(b) At Closing Date, the Redistribution Managers shall have received
from the Auditors a letter, dated as of the Closing Date, to the effect
that they reaffirm the statements made in the letter furnished to the
Redistribution Managers pursuant to paragraph (a) of this Section 6.
(c) If the Effective Time of the Registration Statement is not prior
to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by the Joint
Global Co-ordinators and Bookrunners. If the Effective Time of the
Registration Statement is prior to the execution and delivery of this
Agreement, the U.S. Prospectus shall have been filed with the Commission in
accordance
12
with the Act and the Rules and Regulations and Section 5(a) of this
Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Redistribution Managers, shall be
contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred (i) any change, or
any development or event involving a prospective change, in the financial
condition, business, properties or results of operations of the Company or
its subsidiaries, taken as a whole, which, in the judgment of the
Redistribution Managers, is so material and adverse as to make it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Redistribution Shares; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the NYSE or the FSE, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. federal, New York or
German authorities; (v) any outbreak or escalation of major hostilities in
which the United States or Germany is involved, any declaration of war by
Congress or the relevant German authorities or any other substantial
national or international calamity or emergency if, in the judgment of the
Redistribution Managers, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Redistribution Shares; (vi) any change in currency exchange rates
between either the U.S. dollar and the deutsche xxxx or the U.S. dollar and
the euro, or the imposition by the United States or Germany of exchange
controls, as would in any such case, in the reasonable judgment of the
Redistribution Managers, be so material and adverse as to make it
impracticable to proceed with the sale of and payment for the
Redistribution Shares. Further, the Joint Global Co-ordinators and
Bookrunners, on behalf of the Redistribution Managers, reserve the right to
terminate the Redistribution after consultation with the Company, if its
implementation is no longer advisable, for example, because of turbulence
in the international capital markets.
(e) The Redistribution Managers shall have received an opinion, dated
such Closing Date, of Hengeler Xxxxxxx Xxxxxxx Xxxxx, German Counsel to the
Company, to the effect that:
(i) The Company is a stock corporation (Aktiengesellschaft) duly
established and validly existing under the laws of Germany with
corporate power and authority to own its properties and conduct its
business as described in the
13
Prospectus. The Company is duly registered in the commercial register
(Handelsregister) of the local court of Frankfurt am Main under HRB
42283;
(ii) The Shares to be issued by the Company in the Demerger have
been duly and validly authorized and, upon registration of the
Demerger in the commercial register of Hoechst AG and of the Company,
will be duly and validly issued, fully paid and will conform to the
description thereof contained in the German Prospectus under the
caption "Beschreibung der Aktien;"
(iii) The Demerger has become effective and, by operation of law,
title to all assets belonging to the demerged businesses have been
transferred to the Company;
(iv) The German Prospectus corresponds as to content to the
Registration Statement and is a fair translation thereof except for
immaterial adjustments necessary to comply with the listing
requirements of the FSE;
(v) Upon the publication of the German Prospectus and the listing
and admission for trading of the shares on the FSE no regulatory or
governmental authorization, consent, approval, order or registration
is required in Germany for the Redistribution Agreement and the
performance by the Company of its obligations thereunder;
(vi) The German Prospectus on its face complies with all listing
requirements of the FSE;
(vii) The Company has taken all actions and made all filings and
publications necessary to have the Shares listed on the FSE;
(viii) Neither the Redistribution of the Redistribution Shares
nor the execution and delivery of the Redistribution Agreement by the
Company nor the performance by the Company of its obligations
thereunder conflict with or result in a violation of any provision of
the Articles of Association of the Company or any applicable law or
regulation of Germany;
(ix) The statements set forth in the German Prospectus under the
captions "Einfuhrung des Euro," "Geschaftsbeziehungen und
Transaktionen mit Dritten," "Hauptaktionare," "Allgemeine
Informationen uber die Gesellschaft," "Organe und Mitarbeiter," and
"Besteuerung in der Bundesrepublik Deutschland," in each case in so
far as they purport to constitute a summary of German law or the
provisions of documents described therein which are governed by German
law, fairly summarize the position under relevant German law and of
such documents; and the statements set forth in the Registration
Statement under the captions "Exchange Rate Information,"
"Management," "Relationships and Third Party Transactions," "Principal
and Selling Shareholders," "Description of
14
Securities to be Registered," "Material United States Federal Income
Tax and German Tax Considerations," and "Service of Process and
Enforcement of Civil Liberties," in each case in so far as they
purport to constitute a summary of German law or the provisions of
documents described therein which are governed by German law, fairly
summarize the position under relevant German law and of such
documents;
(x) The Redistribution Agreement has been duly executed and
delivered by duly authorized officers of the Company and constitutes a
valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms (subject to customary
exclusions regarding bankruptcy and insolvency laws; and the customary
qualification regarding enforceability of the indemnification
provisions under Section 57 et seq. of the German Stock Corporation
Act );
(xi) No stamp duties or registration, issue, documentary or
similar taxes or duties are payable in Germany in connection with the
Redistribution of the Redistribution Shares and the execution and
delivery of the Redistribution Agreement;
(xii) All dividends declared and payable on the Shares may under
the laws and regulations of Germany be paid in euros; and
(xiii) Under the laws of Germany, the Redistribution Managers
would be permitted to commence proceedings against the Company in
German courts based on actions under or in connection with the
Redistribution Agreement; and such courts would accept jurisdiction
over any such proceedings.
In rendering such opinion, such counsel may, without independent
investigation, rely, subject to the assumptions, qualifications or
limitations therein, (A) as to all matters of United States federal laws
and state securities laws (if any), upon the opinion of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP referred to below; and (B) solely as to matters
of fact set forth therein and to the extent he deems proper, upon
certificates of responsible officers of the Company and public officials.
(f) The Redistribution Managers shall have received an opinion, dated
the Closing Date, of Xx. Xxxxxxx Kaffanke, General Counsel of the Company,
to the effect that, except as disclosed in the Prospectus, to the best of
such counsel's knowledge and belief, and without making any independent
inquiry, there are no pending or threatened or contemplated actions, suits
or proceedings against or affecting the Company, any of its subsidiaries or
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, or would reasonably be expected
to materially and adversely affect the ability of the Company to perform
its obligations under this Agreement, or which would otherwise be
reasonably expected to have a material adverse effect on the
15
Redistribution.
(g) The Redistribution Managers shall have received an opinion, dated
such Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United
States counsel for the Company, to the effect that:
(i) The agreement of the Redistribution Managers to redistribute
the Redistribution Shares pursuant to the Redistribution Agreement and
the performance by the Company of its obligations in the
Redistribution Agreement do not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the United States, except such as have been
obtained or effected under the Act and except for the qualification of
the Shares for listing on the NYSE under the Exchange Act (but such
counsel need express no opinion as to any consent, approval,
authorization, registration or qualification that may be required
under state securities or Blue Sky laws).
(ii) The statements set forth in the U.S. Prospectus under
"Material United States Federal Income Tax and German Tax
Considerations," insofar as such statements purport to summarize
certain federal income tax laws of the United States, constitute a
fair summary of the principal United States federal income tax
consequences of an investment in the Shares.
(iii) The Company, after giving effect to the issuance of the
Shares, will not be required to register as an "investment company"
under the Investment Company Act of 1940.
(iv) The Prospectus either was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Registration Statement
and based solely upon a telephonic confirmation from a representative
of the Commission, the Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the requirements of
the Act and the Rules and Regulations thereunder.
(v) The statements in the U.S. Prospectus in the Sections
entitled "Service of Process and Enforcement of Civil Liabilities,"
and "Material United States Federal Income Tax and German Tax
Considerations" (insofar as such statements constitute summaries of
United States federal legal and regulatory provisions) fairly present
in all material respects the information called for with respect to
such United States legal and regulatory provisions.
16
(vi) The Shares are duly authorized for listing on the NYSE,
subject only to official notice of issuance.
(vii) Counsel has no reason to believe that the Registration
Statement or any amendment or supplement thereto, as of its effective
date or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the U.S. Prospectus or any amendment or supplement
thereto, as of its issue date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the
financial statements or other financial and statistical data contained
in the Registration Statement or the U.S. Prospectus, as to the
information set forth in the U.S. Prospectus under the caption "The
Redistribution," other than the information set forth in the first
paragraph and in the first sentence of the second paragraph therein,
and the information set forth in the U.S. Prospectus in the fifth and
sixth sentences of the first paragraph of the cover page and in the
second-to-last paragraph of the cover page. With respect to such
statements, such counsel may state that such belief is based upon such
counsel's participation in the preparation of the Registration
Statement and the U.S. Prospectus and review and discussion of the
contents thereof and of such other documents as such counsel shall
deem appropriate. Such counsel may state that they do not express any
opinion or belief as to the statements, insofar as they relate to
matters of German law, made in the U.S. Prospectus.
In rendering such opinions, such counsel may, without independent
investigation, rely, subject to the assumptions, qualifications or
limitations therein, (A) as to all matters of German law, upon the opinion
of Hengeler Xxxxxxx Xxxxxxx Xxxxx, German Counsel to the Company referred
to above; and (B) on the accuracy of each document they have reviewed
(including, without limitation, the accuracy of the representations and
warranties of the Company in this Agreement) as to matters of fact stated
in any such document.
(h) The Redistribution Managers shall have received from Shearman &
Sterling, counsel for the Redistribution Managers, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Redistribution Shares delivered on such
Closing Date, the Registration Statement, the Prospectus and other related
matters as the Redistribution Managers may require, and the Company shall
have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters. In rendering
such opinion, Shearman & Sterling may rely as to the incorporation of the
Company and all other matters governed by German law upon the opinions of
Hengeler Xxxxxxx Xxxxxxx Xxxxx, German Counsel to the Company referred to
above.
17
(i) The Redistribution Managers shall have received a certificate,
dated the Closing Date, of the Chairman of the Company's Management Board
or any Management Board Member and a principal financial or accounting
officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true
and correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date; and, subsequent to the date of the most recent
financial statements included in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the financial condition, business, properties
or results of operations of the Company and its subsidiaries taken as a
whole, except as set forth in or contemplated by the Prospectus.
(j) The Redistribution Managers shall have received a letter, dated
the Closing Date, of the Auditors which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than 5 days prior to such
Closing Date for the purposes of this subsection.
The Company will furnish the Redistribution Managers with such conformed copies
of such opinions, certificates, letters and documents as the Redistribution
Managers reasonably request. The Joint Global Co-ordinators and Bookrunners may
in their sole discretion waive on behalf of the Redistribution Managers
compliance with any conditions to the obligations of the Redistribution Managers
hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Redistribution Manager, its partners, directors and officers
and each person, if any, who controls such Redistribution Manager within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Redistribution Manager may become
subject, under the Act, the German Stock Exchange Act (Borsengesetz) or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
Preliminary Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Redistribution Manager for any legal or other expenses reasonably incurred
by such Redistribution Manager in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Redistribution Manager
specifically for use therein, it being understood and agreed that the only such
information furnished by any Redistribution Manager consists of the information
described as such in subsection (b) below; and provided further that the Company
shall not be liable to any Redistribution Manager under the indemnity in this
subsection (a) with respect to any
18
Preliminary Prospectus used in connection with sales of Redistribution Shares in
the United States to the extent that any loss, claim, damage or liability of
such Redistribution Manager results from the fact that such Redistribution
Manager sold Redistribution Shares to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the U.S. Prospectus or of the U.S.
Prospectus as then amended or supplemented in any case where such delivery is
required by the Act, if the Company had previously furnished copies thereof in
sufficient quantity to such Redistribution Manager and the loss, claim, damage
or liability of such Redistribution Manager results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus used in
connection with sales of Redistribution Shares in the United States which was
identified in writing at such time to such Redistribution Manager and corrected
in the U.S. Prospectus or in the Prospectus as then amended or supplemented.
(b) Each Redistribution Manager will severally, and not jointly, indemnify
and hold harmless the Company, its directors and officers, and each person, if
any who controls the Company within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related Preliminary Prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Redistribution Manager specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Redistribution Manager
consists of the following information in the Prospectus furnished on behalf of
each Redistribution Manager: the fifth and sixth sentences of the first
paragraph and the third paragraph and the list of Redistribution Managers at the
bottom of the cover page of the U.S. Prospectus concerning the terms of the
offering by the Redistribution Managers and the information set forth under the
caption "The Redistribution" (or "Die Umplazierung" in the German Prospectus),
except for the first paragraph.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party in writing will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party in
writing of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
19
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement or compromise of, or consent to the entering of any judgment with
respect to, any pending or threatened action or claim in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement, compromise
or consent (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities or actions in respect thereof referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand, and the Redistribution Managers on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities or actions in respect thereof as well as any
other relevant equitable considerations. The relative fault of the Company, on
the one hand, and the Redistribution Managers, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Redistribution Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities or actions in respect thereof referred to
in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Redistribution Manager shall be required to contribute any
amount in excess of the commissions received by such Redistribution Manager. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Redistribution Managers'
obligations in this subsection (d) to contribute are several based upon the
Redistribution Managers' proportionate share of the aggregate Selling
Commissions paid by the Company.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
Redistribution Manager within the meaning of the Act; and the obligations of the
Redistribution Managers under this Section shall be in addition to any liability
which the respective Redistribution Managers may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each
20
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of the Redistribution Managers. If any Redistribution Manager
defaults in its obligations with respect to the Redistribution Shares allocated
to it in the Redistribution, the Joint Global Co-ordinators and Bookrunners will
first use their best efforts to arrange for such Redistribution Shares to be
redistributed by other persons, including any of the Redistribution Managers. If
arrangements satisfactory to the Joint Global Co-ordinators and Bookrunners and
the Company for the redistribution of such Redistribution Shares by other
persons are not made after such default, the non-defaulting Redistribution
Managers shall be obligated severally, in proportion to their respective quotas
(calculated in proportion to the Minimum Selling Commissions set forth in
Section 4), to take up the Redistribution Shares that such defaulting
Redistribution Manager or Redistribution Managers failed to redistribute;
provided, however, that the total number of additional Redistribution Shares
that may be allocated to each non-defaulting Redistribution Manager may not
exceed 10% of its quota. If the total number of additional Redistribution Shares
to be allocated to each non-defaulting Redistribution Manager exceeds 10% of its
quota, individually, the excess Shares will not be sold through the
Redistribution and will remain with the Selling Shareholders. The Company shall
not pay Selling Commissions on any Redistribution Shares not sold, and any
defaulting Redistribution Manager shall not be entitled to any Minimum Selling
Commission. As used in this Agreement, the term "Redistribution Manager"
includes any person substituted for a Redistribution Manager under this Section.
Nothing herein will relieve a defaulting Redistribution Manager from liability
for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Redistribution Managers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Redistribution Manager, the Company or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of the Redistribution Shares. If this Agreement is
terminated pursuant to Section 8 or if for any reason the agreement to
redistribute the Redistribution Shares by the Redistribution Managers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Redistribution Managers pursuant to Section 7 shall remain in
effect, and if any Redistribution Shares have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the agreement to redistribute the Redistribution
Shares by the Redistribution Managers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(d), the Company will reimburse the Redistribution Managers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the Redistribution.
10. Notices. All communications hereunder will be in writing and, if sent
to the Redistribution Managers, will be mailed, delivered or telegraphed and
confirmed to the
21
Redistribution Managers, c/o Credit Suisse First Boston (Europe) Limited, Xxx
Xxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, Attention: Investment Banking
Department--Equity Capital Markets; and x/x Xxxxxxxx Xxxx XX, Xxxxxx Xxxxxxxxx
Finance, Transaction Services, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
Celanese AG, Xxxxxxxx X-000, Xxxxxxxxxxxxx Xxxxxx, X-00000, Xxxxxxxxx xx Xxxx,
Xxxxxxx; provided, however, that any notice to a Redistribution Manager pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Redistribution Manager.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Redistribution Managers. The Joint Global
Co-ordinators and Bookrunners will act for the several Redistribution Managers
in connection with this Redistribution, and any action under this Agreement
taken by the Joint Global Co-ordinators and Bookrunners will be binding upon all
the Redistribution Managers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
22
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Federal Republic of Germany, without regard to
principles of conflicts of laws.
If the foregoing is in accordance with the Redistribution Managers'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Redistribution Managers in accordance with its terms.
CELANESE AG
By:
Name:
Title:
The foregoing Redistribution Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED Acting on behalf of
itself and the other Redistribution Managers named in
Schedule A
By: _______________________________
Attorney-in-fact
DRESDNER BANK AG
Acting on behalf of itself and the other
Redistribution Managers named in
Schedule A
By: _______________________________
Attorney-in-fact
23
SCHEDULE A
LIST OF REDISTRIBUTION MANAGERS
MINIMUM SELLING
JOINT GLOBAL CO-ORDINATORS AND BOOKRUNNERS COMMISSIONS
Credit Suisse First Boston (Europe) Limited ............... DM 2,000,000
Dresdner Bank AG .......................................... DM 2,000,000
CO-LEAD MANAGERS
Bayerische Landesbank Girozentrale ........................ DM 333,333
Deutsche Bank AG .......................................... DM 333,333
DG Bank Deutsche Genossenschaftsbank AG ................... DM 333,333
Xxxxxxx Xxxxx International ............................... DM 333,333
Helaba Landesbank Hessen-Thuringen Girozentrale ........... DM 333,333
X.X. Xxxxxx Securities Ltd. ............................... DM 333,333
00
XXXXXXXX X
Xxxxxxxx Xxxxxxxxxxxx
Xxxxxxxx Xxxxxx Inc.
CNA Holdings Inc.
Diogenes Dreizehnte Vermogensverwaltungs GmbH
Ticona LLC
Celanese Ltd.
Celanese Acetate LLC
Grupo Celanese SA
