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Exhibit 4.2
OFFERING RIGHTS AGREEMENT
THIS OFFERING RIGHTS AGREEMENT (the "Agreement"), is made and entered into as of
the 8th day of October, 1999 by and among Celanese AG, a German joint stock
corporation ("the Company"), and Petrochemical Resources Holdings B.V., a
corporation organized under the laws of the Kingdom of the Netherlands ("PRH").
RECITALS
WHEREAS, PRH is the indirect holder of a significant shareholding in Hoechst AG.
WHEREAS, Hoechst AG is contemplating a restructuring including the demerger or
spin-off to its shareholders of shares of Celanese AG, the listing of those
shares on the Frankfurt and New York Stock Exchanges and a public offering of
certain shares which shareholders of Celanese AG may wish to sell immediately
subsequent to the demerger or spin-off (the "Redistribution Offering").
WHEREAS, PRH has agreed to enter into a Lock-up Agreement in relation to its
shareholding in Celanese AG, in consideration of which Celanese AG has agreed
to enter into this Offering Rights Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual promises and
covenants contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) The terms "register", "qualify" and "list" and any terms deriving
from such terms refer to: (a) a registration effected by preparing
and filing a registration statement
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in compliance with the United States Securities Act of 1933, as
amended (the "Securities Act"), and the declaration or ordering by
the Commission of the effectiveness of such registration statement;
(b) the qualification of any securities for sale, or of any
offering document in relation thereto, with any securities
regulatory authority; and (c) the listing on any stock exchange,
quotation system or other securities market in Europe, the United
States or elsewhere, respectively.
(b) The term "Securities" means all of the following to the
extent the same have not been resold to the public (i) ordinary
shares of Celanese AG held by PRH upon completion of the demerger
referred to in the first recital to this Agreement or acquired
thereafter; (ii) all ordinary shares of Celanese AG issued in
respect of such Securities, including, without limitation, as a
result of any stock split, stock dividend, recapitalization or the
like; and (iii) any depositary shares or depositary receipts
representing or evidencing the ordinary shares of Celanese AG
referred to in (i) and (ii) hereof.
(c) The term "Commission" means the United States Securities and
Exchange Commission.
(d) The term "Offering Expenses" means all expenses incurred by
the Company in complying with this Agreement, including, without
limitation, all registration, qualification and listing fees, filing
and quotation fees and expenses, printing expenses, escrow fees,
accounting fees, fees and disbursements of counsel for the Company,
Blue Sky fees and expenses and roadshow expenses. The term "Offering
Expenses" does not include any fees and disbursements of any special
counsel or any other advisors retained by PRH or PRH's internal
costs and expenses incurred in connection with this Agreement
(collectively, the "Excluded Expenses").
(e) The term "Selling Expenses" means all underwriting discounts
and selling commissions applicable to the sale of the Securities.
and any reimbursable
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expenses incurred by underwriters related to the sale of the
Securities.
2. REQUESTED OFFERING
2.1 Demand for Offering
In the event the Company receives from PRH a written request that the
Company effect a registration, qualification or listing with respect to all
or a part of the Securities (other than, in the case of an offering in the
United States, a registration on Form S-3 or F-3 or any successor form
regardless of its designation) the Company will as soon as practicable,
effect all such registrations, qualifications or listings (including, in
the case of a registered offering in the United States, without limitation,
the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable Blue Sky or other state
securities laws and appropriate compliance with applicable requirements or
regulations) in the relevant jurisdiction in accordance with applicable
securities laws and the rules of the relevant stock exchange as may be so
requested and as would permit or facilitate the sale and distribution of
all or such portion of such Securities as are specified in such request,
provided that the Company shall not be obligated to take any action to
effect any such registration, qualification or listing pursuant to this
paragraph 2.1 or, in the case of clause A below, pursuant to paragraph 4
below:
A. in any particular jurisdiction, other than the United States,
Germany and any other jurisdiction in which the class of the
Company's ordinary shares of which the Securities form a part
may then be registered, qualified or listed, in which (i) the
Company would be required to subject itself to an ongoing
disclosure obligation or regulatory oversight compliance which
does not involve measures substantially duplicative of those to
which the Company is then subject in the United States, Germany
or any other jurisdiction in which its shares are then
registered, qualified or listed or to which it is not already so
subject or (ii) the Company would be required to execute a
general consent to service of process in effecting such
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registration, qualification or listing, unless the Company is
already subject to service in such jurisdiction;
B. after the Company has effected three (3) such registrations,
qualifications or listings pursuant to this paragraph 2.1, which
have been declared or ordered effective, qualified or listed and
the securities offered pursuant to such registration,
qualification or listing have been sold; provided, that during
the first year after the effective date of the listing of the
Company's shares on the New York Stock Exchange, PRH shall be
entitled to make only one (1) demand pursuant to this paragraph
2.1; and provided further that if after the first anniversary of
the effective date of the listing of the Company's shares on the
New York Stock Exchange, the Company is for any reason
ineligible to qualify for registration of its securities for
offer or sale in the United States on Form S-3 (or F-3) the
number of registrations the Company may be required to undertake
pursuant to this section shall be the number specified in
paragraph 4(c) less the number of registrations previously made
hereunder.
Subject to the foregoing clauses A and B, the Company shall file or submit
with the appropriate securities regulatory authority(ies) a registration
statement, listing particulars or an offering document as soon as
practicable after receipt of the request or requests of PRH hereunder and
in relation to any registration, qualification or listing in connection
with which an offering is being made in the United States, the Company
shall use its best efforts to do so within forty-five (45) days of such
request if such offer and sale is registered on Form S-1 (F-1) and thirty
(30) days of such request if such offer and sale is registered on Form S-3
(F-3), and in all events shall do so within sixty (60) days of such request
if registered on Form S-1 (F-1) and forty-five (45) days of such request if
registered on Form S-3 (F-3).
2.2 Underwriting
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If PRH intends to distribute the Securities covered by their request by
means of an underwriting, it shall so advise the Company as a part of its
request made pursuant to this paragraph 2. The underwriter(s), global
coordinator(s), bookrunner(s) and lead manager(s) (collectively,
"Underwriter" or "Underwriters") shall be selected by PRH, which
Underwriter shall be an internationally recognized investment bank of good
standing and reputation with substantial knowledge of the German and United
States markets and a proven track record in lead managing international
equity issues and in serving as lead underwriter of initial public
offerings on the exchange(s) on which it is proposed the relevant
Securities will be listed. provided that PRH shall first consult with the
Company and consider the Company's view with respect of the appropriateness
of PRH's chosen Underwriter in light of such circumstances as mandates such
Underwriter may have which the Company considers to be conflicting with an
offering of its securities and any actual or potential disputes between the
Company and such Underwriters. The Company shall (together with PRH) enter
into an underwriting agreement in customary form and consistent with
international market practice with the Underwriter or Underwriters selected
as above provided.
3. COMPANY OFFERING
3.1 Incidental Offering Rights
If at any time or from time to time, the Company shall determine to make a
public offering of any of its securities, for its own account or the
account of any of its shareholders, other than (i) in the United States by
way of a registration on Form S-1 (or F-1) or S-8 relating solely to
employee stock option or purchase plans, or a registration on Form S-4 (or
F-4) relating solely to a transaction designated as being within the terms
of Rule 145 under the Securities Act, or any successor to such forms, or a
registration on any other form (other than Form S-1 (or X-0), X-0 (or F-2)
or S-3 (or F-3), or their successor forms) which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Securities, or (ii) a
registration statement, listing particulars or any offering documents filed
or submitted
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pursuant to paragraphs 2 or 4 hereof, the Company will:
(i) within ten (10) days of such determination, which shall be deemed to
occur, without limitation, upon the earlier of the authorization
thereof by the Company's supervisory or management board, the
mandating by the Company of an underwriter for the offering and an
organizational meeting for the offering, give to PRH written notice
thereof; and
(ii) include in such registration, qualification or listing (and any
related qualification under state, regional or local securities laws),
and in any underwriting involved therein, all the Securities specified
in a written request or requests by PRH, given within twenty (20) days
after receipt of such written notice from the Company, except as set
forth in paragraph 3.2 below.
3.2 Underwriting
If the registration, qualification or listing of which the Company gives
notice pursuant to this paragraph 3 is for a public offering involving an
underwriting, the Company shall so advise PRH as part of the written notice
given pursuant to subparagraph 3.1(i). In such event, the right of PRH to
participate in an offering pursuant to paragraph 3 shall be conditional
upon PRH's participation in such underwriting and the inclusion of PRH's
Securities in the underwriting to the extent provided herein. PRH shall
(together with the Company) enter into an underwriting agreement in
customary form and consistent with international market practice with the
underwriter or underwriters selected for such underwriting by the Company
(provided that PRH shall not be required to enter into any such
underwriting agreement prior to entering into a lock-up agreement pursuant
to this paragraph 3.2 or receiving confirmation from the Company that no
such lock-up agreement will be required from PRH), which underwriter shall
be an internationally recognized investment bank of good standing and
reputation with substantial knowledge
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of the German and United States markets and a proven track record in lead
managing international equity issues and in serving as lead underwriter
of initial public offerings on the exchange(s) on which it is proposed
the relevant Securities will be listed. If such Underwriters shall so
request, PRH shall also enter into a lock-up agreement in (i)
substantially the same form as the form it is entering into in connection
with the Redistribution Offering, (ii) the form entered into by the
Company in connection with such underwriting pursuant to this paragraph
3, or (iii) a form entered into by any other shareholder who may be
participating in such underwriting pursuant to this paragraph 3,
whichever form is reasonably deemed by PRH to be most favorable to it, it
being understood that PHR will not be required to enter into any lock-up
agreement if either the Company or any other shareholder participating in
such underwriting shall not enter into a lock-up agreement. The Company
shall not require PRH to make any representations or warranties to, or
other agreements with, the Company or the underwriters other than
representations, warranties or agreements regarding PRH, the lock-up
agreement, the Securities and PRH's intended method of distribution and
any other representation required by law. Without limitation on the
foregoing, in relation to any offering which includes a distribution in
the United States, the underwriting agreement shall contain
indemnification and contribution provisions substantially similar to the
provisions of paragraphs 7 and 8 hereof, respectively.
In advance of proceeding with a public offering of any equity securities
which would give rise to PRH's incidental registration rights under this
paragraph 3 and as soon as practicable after providing the notice
required by paragraph 3.1(i), the Company will first consult with PRH as
to (i) the Company's reasons for seeking additional equity capital at
that time and (ii) PRH's interest at that time in selling any of its
Securities, and shall use its best efforts to cause the underwriter or
underwriters of a proposed underwritten public offering to permit
inclusion in that offering of such number of Securities as PRH may
request, taking into account (i) the Company's own capital needs and (ii)
PRH's desire to
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sell Securities and its rights hereunder.
Notwithstanding any other provision of this paragraph 3, if the
underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, the underwriter may limit the amount
of securities (including Securities) to be included in the registration,
qualification or listing and underwriting by the Company's shareholders,
or may exclude such securities entirely from such registration,
qualification on listing and underwriting, provided that if securities
are being offered for the account of persons other than the Company and
PRH, any such limitation or exclusion shall be applied against the
securities being offered by such other persons prior to being applied
against the Securities.
The Company further agrees to consult with PRH prior to entering into any
agreement granting any person registration rights with respect to equity
securities, taking into account (i) the desirability of the overall
transaction contemplated and the importance of the registration rights
agreement to its successful completion and (ii) PRH's interest in not
reducing its ability to sell the Securities in registrations effected
pursuant to this Agreement. The Company agrees that no registration
rights agreement entered into by it with any person other than PRH will
contain expense provisions more favorable to such other person than the
provisions of paragraph 5 hereof. PRH will consider a request by the
Company to enter into an amendment to this Agreement so that any
limitation or exclusion pursuant to the immediately preceding paragraph
hereof shall be applied on a pro rata basis against the securities which
may be offered by any other person to whom
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the Company may grant registration rights and the Securities, provided that
the terms of any such proposed amendment will provide that any such
limitation or exclusion of the Securities shall not represent a greater
fraction of the number of Securities intended to be offered by PRH than the
fraction of similar reductions imposed on such other persons over the
amount of securities they intended to offer. If, as a result of agreeing
to any such amendment, PRH is unable to sell the full number of Securities
it had requested be included in such registration, it shall be entitled to
one (1) additional demand registration right during the next succeeding
twelve (12) months following the registration upon the terms of paragraphs
2 and 4 and the number limitations in paragraphs 4(a) and (c) shall each be
increased by one (1). Notwithstanding the foregoing, PRH will agree to
enter into such an amendment to the extent that the Company intends to
grant registration rights to a party in the context of a sale of its
securities to such party if as a result of such sale such party will have a
shareholding equal to or greater than the aggregate shareholding of PRH and
PRH's affiliates at the time.
4. FORM S-3
The Company shall use its best efforts to qualify for registration of its
securities for offer and sale in the United States on Form S-3 (or F-3) or
any successor form(s) as soon as possible. After the Company has qualified
for the use of Form S-3 (or F-3), PRH shall have the right to request
registrations on Form S-3 (or F-3) (such requests shall be in writing and
shall state the number of Securities to be disposed of and the intended
method of disposition of those Securities by PRH, including whether the
registered offering will be underwritten), subject only to the following:
(a) The Company shall not be required to effect a registration pursuant to
this
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paragraph 4 or under paragraph 2 during any calendar year to the
extent that PRH has disposed of Securities on two (2) or more
occasions pursuant to any registration referred to in this
paragraph 4 or in paragraphs 2 and 3 during that same calendar
year.
(b) The Company shall not be required to effect a registration
pursuant to this paragraph 4 or pursuant to paragraph 2 unless PRH
proposes to dispose of Securities having an aggregate proposed
offering price (before deduction of underwriting discounts and
expenses of sale) of at least $75 million.
(c) The Company shall not be required to effect in the aggregate
more than ten (10) registrations pursuant to this paragraph,
provided that such number shall increase by one (1) if the Company
effects a capital increase subsequent to the date hereof other than
capital increases required solely in connection with Company stock
option and other employee benefit plans.
The underwriter of any underwritten offering shall be selected in the
same manner as is set forth in paragraph 2.2. Subject to the foregoing,
the Company will as soon as practicable effect the registration of all
shares of Securities on Form S-3 (or F-3) to the extent requested by PRH
for purposes of disposition and all such registrations, qualifications or
compliance (including without limitation, the execution of an undertaking
to file post-effective amendments, appropriate qualification under
applicable Blue Sky or other state securities laws and appropriate
compliance with applicable requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of
all or such portion of such Securities as are specified in such request.
At all times that the Company qualifies for registration of its
securities on Form S-3 (F-3), any demand by PRH for registration pursuant
to this Agreement shall be pursuant to this paragraph 4, if available,
rather than pursuant to paragraph 2, provided that the Company shall
include in the prospectus forming part of any registration statement on
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Form S-3 (F-3) effected pursuant to any such demand a level and detail of
disclosure reasonably deemed appropriate by the Underwriters for any
offering of Securities by PRH, but not more disclosure than would be
required under Form S-1 (F-1).
5. EXPENSES OF OFFERING
All Offering Expenses incurred in connection with any registration,
qualification or listing pursuant to paragraphs 2, 3 and 4 shall be borne
by the Company; provided, however, that PRH shall bear the Selling Expenses
and Excluded Expenses with respect to all Securities that are sold by PRH
in a registration, qualification or listing pursuant to this Agreement.
6. OFFERING PROCEDURES
Whenever required under this Agreement to effect the registration,
qualification or listing of any Securities, the Company shall:
(a) Within the time periods set out in paragraph 2, prepare and file with
or submit to the applicable securities regulatory authority a
registration statement, listing particulars or offering document with
respect to such Securities and cause such registration statement to
become effective or such offering document to be approved, and keep
such registration statement effective for up to one hundred and eighty
(180) days or until all Securities covered thereby have been sold, if
earlier, or keep such listing particulars or other offering document
current in accordance with applicable regulations;
(b) As expeditiously as possible prepare and file with the applicable
securities regulatory authority such amendments and supplements to
such registration statement, listing particulars or offering document
as may be necessary to comply with the provisions of the applicable
securities laws and regulations with respect to the disposition of all
securities covered by such registration statement, listing
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particulars or offering document;
(c) Furnish to PRH such numbers of copies of a prospectus,
listing particulars or offering document, in conformity with the
requirements of the applicable securities laws and regulations, and
such other documents as it may reasonably request in order to
facilitate the disposition of Securities owned by it;
(d) Register and qualify the securities covered by such
registration statement, listing particulars or offering document
under the securities laws of such jurisdictions as shall be
reasonably requested by PRH, provided that the Company shall not be
required in connection therewith or as a condition thereto to
qualify to do business, to pay taxes in any jurisdiction in which it
would not otherwise be subject to taxation, or to file a general
consent of service of process in any jurisdictions unless the
Company is already subject to service in such jurisdiction;
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in
usual and customary form and consistent with international market
practice, with the underwriter or underwriters selected for such
offering in accordance with the terms hereof. PRH shall also enter
into and perform its obligations under such an agreement;
(f) Qualify the Securities being publicly offered for listing on
the New York Stock Exchange, the Frankfurt Stock Exchange and/or on
any other exchange or quotation system on which the Company's
securities are then listed or quoted;
(g) For a reasonable period prior to the filing of any such
Registration Statement and throughout the registration and sale
process, subject to the execution by PRH and the Underwriters and
their respective legal counsel of an appropriate confidentiality
agreement in favor of the Company, assist PRH, its advisors,
Underwriters and counsel to the extent such persons reasonably deem
necessary to avoid potential liability to such persons under the
U.S. securities laws or any
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other applicable securities laws or regulations in the context of an
offering, qualification or listing of the Securities;
(h) Cause its officers, directors, employees, counsel and accountants to
respond to any inquiries, as shall be reasonably necessary, in the
judgment of the underwriters and their advisors, to conduct a
reasonable due diligence of the business of the Company;
(i) Cause its senior management to be available for and participate in
international road shows and other marketing activities and otherwise
provide reasonable assistance to the underwriters as shall be
reasonably necessary in the judgment of the underwriters;
(j) Otherwise use its best efforts to comply with all applicable rules and
regulations of the applicable securities regulatory authority(ies);
(k) Deliver promptly to counsel to PRH and each underwriter, if any,
participating in the offering of the Securities, copies of all
correspondence between the applicable securities regulatory
authority(ies) and the Company, its counsel or auditors;
(l) In the case of a registration of Securities in the United States,
obtain the withdrawal of any order suspending the effectiveness of the
registration statement; and
(m) Provide a CUSIP number or other recognized securities identification
number for all Securities in a timely manner.
7. INDEMNIFICATION
In the case of any offering which includes a public offering registered in
the United States, and without limitation on the terms of paragraphs 2.2 or
3.2 hereof:
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(a) the Company will indemnify PRH, each of its officers, directors and
partners, and each person controlling PRH, within the meaning of
Section 15 of the Securities Act, with respect to which such
registration, qualification or listing has been effected pursuant
to this Agreement, and each underwriter (as defined in the
Securities Act), if any, and each person who controls any
underwriter, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereto), including any of the
foregoing incurred in settlement of any litigation or proceeding,
commenced or threatened arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact
contained in any prospectus, listing particulars, offering circular
or other document (including any related registration statement,
notification or the like) incident to any such registration,
qualification or listing, or based on any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
or any violation by the Company of any rule or regulation
promulgated under the Securities Act or any state securities law
applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification or listing, and will reimburse PRH, each of its
officers, directors and partners, and each person controlling PRH,
within the meaning of Section 15 of the Securities Act, each such
underwriter and each person who controls any such underwriter, for
any reasonable legal and any other expenses incurred in connection
with investigating, defending or settling any such claim, loss,
damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim,
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loss, damage or liability arises out of or is based on any untrue
statement or omission based upon written information furnished to
the Company in an instrument duly executed by PRH or any
underwriter specifically for use therein; and provided further that
the agreement of the Company to indemnify any underwriter and any
person who controls such underwriter contained herein with respect
to any such preliminary prospectus, listing particulars, offering
circular or other document shall not inure to the benefit of any
underwriter from whom the person asserting any such claim, loss,
damage, liability or action purchased the stock which is the
subject thereof, if at or prior to the written confirmation of the
sale of such stock, a copy of the prospectus, listing particulars,
offering circular or other document (including as amended or
supplemented), excluding the documents incorporated therein by
reference, was not sent or delivered to such person, and the untrue
statement or omission of a material fact contained in such
preliminary prospectus, listing particulars, offering circular or
other document was corrected in the prospectus, listing
particulars, offering circular or other document (including as
amended or supplemented);
(b) PRH will, if Securities held by or issuable to PRH are
included in the securities as to which such registration,
qualification or listing is being effected, indemnify the Company,
each of its directors and officers, each underwriter as defined in
the Securities Act, if any, of the Company's securities and each
person who controls the Company within the meaning of the Securities
Act, against all claims, losses, expenses, damages and liabilities
(or actions in respect thereto), including any of the foregoing
incurred in settlement of any litigation or proceedings, commenced
or threatened arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, listing particulars offering circular or other document,
(including any related registration statement, notification or the
like) incident to any such registration, qualification or listing,
or any 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 the Company,
each of its officers and directors and each person who controls the
Company within the meaning of the Securities Act and such
underwriters for any reasonable legal or any other expenses incurred
in connection with investigating, defending or settling any such
claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made
in such prospectus, listing particulars offering circular or other
document, registration statement, notification or the like in
reliance upon and in conformity with written
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information furnished to the Company by an instrument duly executed
by PRH specifically for use therein; and provided further that the
agreement of PRH to indemnify any underwriter and any person who
controls such underwriter contained herein with respect to any such
preliminary prospectus, listing particulars, offering circular or
other document shall not inure to the benefit of any underwriter from
whom the person asserting any such claim, loss, damage, liability or
action purchased the stock which is the subject thereof, if at or
prior to the written confirmation of the sale of such stock, a copy
of the prospectus, listing particulars, offering circular or other
document (including as amended or supplemented), excluding the
documents incorporated therein by reference, was not sent or
delivered to such person, and the untrue statement or omission of a
material fact contained in such preliminary prospectus, listing
particulars, offering circular or other document was corrected in the
prospectus, listing particulars, offering circular or other document
(including as amended or supplemented). Notwithstanding the
foregoing, the total amount for which PRH shall be liable under this
paragraph 7(b) shall not in any event exceed the aggregate proceeds
received by PRH from the sale of Securities held by PRH in such
registration; and
(c) each party entitled to indemnification under this paragraph 7 (the
"Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in
such defense at such party's expense, and provided further that the
failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations
hereunder, unless such failure resulted in actual detriment to the
Indemnifying Party. No Indemnifying Party, in the defense of any
such claim or litigation,
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shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
8. CONTRIBUTION
In the case of any offering which includes a public offering registered in
the United States, and without limitation on the terms of paragraphs 2.2 or
3.2 hereof, if the indemnification provided for in paragraph 7 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage or expense referred to
therein, the Indemnifying Party, in lieu of indemnifying such Indemnified
Party thereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the statements or omissions which resulted in
such loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party 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 Indemnifying Party or by the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
9. INFORMATION BY PRH
PRH shall promptly furnish to the Company such information regarding PRH
and the distribution proposed by PRH as the Company may reasonably request
in writing and as shall be required in connection with any registration,
qualification or listing referred to herein.
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10. RULE 144 REPORTING
With a view to making available to PRH the benefits of certain rules and
regulations of the Commission which may permit the sale of the Securities
to the public without registration, the Company agrees at all times after
it becomes subject to the reporting requirements of the Commission under
the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the
Securities Act and the Exchange Act;
(c) so long as PRH owns any Securities, to furnish to PRH forthwith upon
request a written statement by the Company as to its compliance with
the reporting requirements of said Rule 144 and of the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed by the Company as PRH may
reasonably request in complying with any rule or regulation or the
Commission allowing PRH to sell any such securities without
registration; and
(d) to take whatever actions are necessary in order for it to qualify to
use Form S-2 (or F-2) or S-3 (or F-3), or any form subsequently
adopted by the Commission to take the place of Form S-2 (or F-2) or
S-3 (or F-3) which does not require substantially more disclosure than
the form which it replaces.
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11. TRANSFER OF OFFERING RIGHTS
PRH's rights to cause the Company to register, qualify or list its
securities and keep information available, granted to it by the Company
under paragraphs 2, 3, 4 and 10, may be assigned to a transferee or
assignee who, in a transaction not including a public offering, (i)
receives Securities representing not less than five percent (5%) of the
class of ordinary shares of which the Securities form a part, or (ii) is a
wholly owned subsidiary or parent of, or any corporation or entity which is
(within the meaning of the Securities Act) controlling, controlled by or
under common control with PRH. Any transfer or assignment permitted by the
foregoing sentence shall be effective as long as (i) the Company is given
written notice by PRH at the time of or within a reasonable time after said
transfer, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such offering rights are
being assigned and (ii) such transferee agrees to be bound by the terms and
conditions of this Agreement, treating for such purposes references herein
to PRH as being references to such transferee, the Company hereby
acknowledging that upon any such permitted transfer any such transferee
shall have the rights of PRH hereunder. In the event that PRH transfers
less than all of its Securities, the number of demand rights pursuant to
paragraphs 2 and 4 hereof will be unchanged, and it will be the obligation
of PRH and its transferee or transferees to apportion such demand rights
among themselves, provided that to the extent PRH and one or more of its
transferees shall jointly exercise a demand right pursuant to paragraphs 2
or 4 hereof in respect of all or a portion of their respective Securities,
that demand shall be deemed to be a single demand for purposes hereof.
12. WAIVERS AND AMENDMENTS
With the written consent of either party to this Agreement, the obligations
of the other party may be waived (either generally or in a particular
instance, either retroactively or prospectively, and either for a specified
period of time or indefinitely), and the terms of this Agreement may be
amended in a writing signed by both parties.
13. REMEDIES
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Each of the Company and PRH agrees to indemnify the other party and to hold
the other party harmless from and against any and all losses, costs and
expenses (including, without limitation, legal and other expenses) arising
out of or relating to any breach of any term of this Agreement by the other
party.
14. GOVERNING LAW; JURISDICTION
This Agreement shall be governed in all respects by the laws of the State
of New York as such laws are applied to agreements between New York
residents entered into and to be performed entirely within New York.
The parties submit to the non-exclusive jurisdiction of the Courts of the
State of New York or of United States courts sitting in the State of New
York in respect of any dispute arising out of the subject matter of this
Agreement.
15. SUCCESSORS AND ASSIGNS
Except as otherwise expressly provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
16. ENTIRE AGREEMENT
This Agreement and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with
regard to the subjects hereof and thereof, and this Agreement shall
supersede and cancel all prior agreements between the parties hereto with
regard to the subject matter hereof.
17. NOTICES, ETC.
All notices and other communications required or permitted hereunder shall
be in writing
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and shall be mailed by either first class mail, postage prepaid, certified
or registered mail, return receipt requested, or overnight courier service
addressed (a) if to PRH, at such address as PRH shall have furnished to the
Company in writing, and (b) if to the Company, at such address as the
Company shall have furnished to PRH in writing.
18. SEVERABILITY
If any provision of this Agreement, or the application thereof, shall for
any reason and to any extent be invalid or unenforceable, the remainder of
this Agreement and application of such provision to persons or
circumstances shall be interpreted so as best to reasonably effect the
intent of the parties hereto. The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable
provision.
19. TITLES AND SUBTITLES
The titles of the paragraphs and subparagraphs of this Agreement are for
convenience of reference only and are not to be considered in construing
this Agreement.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument.
21. TERMINATION
Except as provided herein, this Agreement will terminate on the date three
months after the shareholding of PRH (together with its "affiliates") in
the Company is reduced to below ten percent (10%), provided that the
Company provides PRH with an opinion of independent United States
securities counsel reasonably satisfactory to XXX xxxx XXX
00
00
(together with its "affiliates") is not then an "affiliate" of the
Company, as such term is defined under the Securities Act.
Notwithstanding the foregoing, for so long as the shareholding of PRH in
the Company equals or exceeds five percent (5%), the Company shall
provide to PRH the assistance in effecting sales of the Securities which
is described in paragraph 6(i) subject to the same limitations set out in
paragraph 4, treating any offering in respect of which such assistance is
provided as being a registration within the terms of such paragraph 4.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first above written.
CELANESE AG
By:
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Title:
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PETROCHEMICAL RESOURCES HOLDINGS B.V.
By:
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Title:
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