EXHIBIT 1.1
35,000,000 SHARES
CELANESE CORPORATION
SERIES A COMMON STOCK, PAR VALUE $.0001 PER SHARE
UNDERWRITING AGREEMENT
May 9, 2006
May 9, 2006
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Blackstone Capital Partners (Cayman) Ltd. 1 ("BCP 1"), Blackstone Capital
Partners (Cayman) Ltd. 2 ("BCP 2"), Blackstone Capital Partners (Cayman) Ltd. 3
("BCP 3" and together with BCP 1 and BCP 2, the "BCP SELLING STOCKHOLDERS") and
BA Capital Investors Sidecar Fund, L.P. ("BACI" and together with the BCP
Selling Stockholders, the "SELLING STOCKHOLDERS") propose to sell you, as
Underwriter (the "UNDERWRITER") an aggregate of 35,000,000 shares (the "FIRM
SHARES") of the Series A Common Stock, par value $.0001 per share of Celanese
Corporation, a Delaware corporation (the "COMPANY"), as set forth in Schedule I
hereto. The Selling Stockholders also propose to sell you up to an aggregate of
5,250,000 shares of the Series A Common Stock, par value $.0001 per share (the
"ADDITIONAL SHARES") of the Company, as set forth in Schedule I hereto, if and
to the extent that you shall have determined to exercise the right to purchase
such shares of common stock granted to you in Section 3 hereof. The Firm Shares
and the Additional Shares are hereinafter collectively referred to as the
"SHARES." The outstanding shares of the Series A Common Stock, par value $.0001
per share, of the Company, including the Shares, are hereinafter referred to as
the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (registration No. 333-133934,
including a prospectus, relating to the Shares. The registration statement, as
amended to the Applicable Time (as defined below), including the information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or 430B under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT"; and the related prospectus included in the Registration Statement in
the form first used to confirm sales of Shares is hereinafter referred to as the
"BASIC PROSPECTUS." The Basic Prospectus, as supplemented by the prospectus
supplement, dated May 9, 2006, in the form first used to confirm sales of the
Shares (or in the form first made available to the Underwriter by the Company to
meet the requests of purchasers pursuant to Rule 173 under the Securities Act)
is hereinafter referred to as the "PROSPECTUS," and the term "PRELIMINARY
prospectus" means any preliminary form of the Prospectus. For the purposes of
this agreement "FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405
under the Securities Act and "TIME OF SALE PROSPECTUS" means the preliminary
prospectus together with the free writing prospectus, if any, each identified in
Schedule II hereto. As used herein, the terms "Registration Statement," "Basic
Prospectus," "preliminary
prospectus," "Time of Sale Prospectus" and "Prospectus" shall include the
documents, if any, incorporated by reference therein. The terms "SUPPLEMENT,"
"AMENDMENT," and "AMEND" as used herein with respect to the Registration
Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary
prospectus or free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), that are deemed to be incorporated by
reference therein. "APPLICABLE TIME" means 11:00 pm (Eastern time) on the date
of this Agreement.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriter that:
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission. The Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities
Act) eligible to use the Registration Statement as an automatic shelf
registration statement and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
(b) The Company is not an "ineligible issuer" in connection with
the offering pursuant to Rules 164, 405 and 433 under the Securities Act.
Any free writing prospectus that the Company is required to file pursuant
to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder.
Each free writing prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or
will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. Except for the free writing prospectuses, if any, identified
in Schedule II hereto, and electronic road shows each furnished to you
before first use, the Company has not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any free
writing prospectus.
(c) (i) The Registration Statement, when it became effective and
as of the Applicable Time, did not contain and, as amended or
supplemented, if applicable, will not contain any 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, (ii)
the Registration Statement and the Prospectus comply and, as amended or
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supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) the Time of Sale Prospectus does not, and at the
Applicable Time and at the Closing Date (as defined in Section 5), the
Time of Sale Prospectus, as then amended or supplemented by the Company,
if applicable, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus
based upon (A) information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein, (B) the
BCP Selling Stockholders Information (as defined below) or (C) the BACI
Information (as defined below).
(d) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Time of Sale Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction where such qualification is required, except to the extent
that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the Company
and each of its direct and indirect subsidiaries, taken together as a
whole (a "MATERIAL ADVERSE EFFECT"), and the Company has the power and
authority to execute, deliver and perform its obligations hereunder and
under each agreement or instrument contemplated hereby to which it is or
will be a party.
(e) Each significant subsidiary (as such term is defined in Rule
405 under the Securities Act) of the Company has been duly incorporated or
formed, as the case may be, is validly existing as a corporation,
partnership, limited liability company or exempted company in good
standing (or if applicable, in a foreign jurisdiction, enjoys the
equivalent status under the laws of any jurisdiction of organization
outside the United States) under the laws of the jurisdiction of its
organization, has the corporate, limited liability company or partnership,
as the case may be, power and authority to own its property and assets and
to conduct its business as described in the Time of Sale Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction where such
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qualification is required, except to the extent that the failure to be so
incorporated or formed, as the case may be, or existing, to have such
power and authority or to be so qualified or be in good standing would not
reasonably be expected to have a Material Adverse Effect; all of the
issued shares of capital stock of each significant subsidiary of the
Company that are owned by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned by
the Company, free and clear of all liens, encumbrances, equities or claims
except liens, encumbrances, equities or claims created pursuant to the
floating rate term loan and the senior secured credit facilities described
in the Time of Sale Prospectus or otherwise as described in the Time of
Sale Prospectus.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus under the heading "Description of
Capital Stock."
(h) The shares of Common Stock currently outstanding (including
the Shares) have been duly authorized and are validly issued, fully paid
and non-assessable.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene (A) the certificate or articles of incorporation or by-laws
of the Company, (B) any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company, (C)
any provision of applicable law or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company,
except, in the case of clauses (B) and (C), such contraventions as would
not reasonably be expected to have a Material Adverse Effect; and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development which would reasonably be likely to involve a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale Prospectus.
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(k) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject, other than proceedings
described in the Registration Statement, the Time of Sale Prospectus or
the Prospectus and proceedings that would not reasonably be expected to
have a Material Adverse Effect.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering
and sale of the Shares as described in the Prospectus will not be,
required to register as an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as they are
currently conducted and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except (A) where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect
or (B) as described in the Time of Sale Prospectus.
(o) Except as described in the Time of Sale Prospectus, the
Company is not obligated to take any action or incur any costs to comply
with, and neither the Company nor any of its subsidiaries has any
liabilities under, applicable Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(p) Except as disclosed in the Time of Sale Prospectus, there are
no contracts, agreements or understandings between the Company and
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any person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(q) Except as disclosed in the Time of Sale Prospectus, the
Company maintains a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles as applied in the
United States and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for inventory
is compared with existing inventories at reasonable intervals and
appropriate action is taken with respect to any differences.
2. Representations and Warranties of Each Selling Stockholder. Except
with respect to Section 2(e) which will apply only to BCP Selling Stockholders
and Section 2(f) which will apply only to BACI, each Selling Stockholder,
severally and not jointly, represents and warrants to and agrees with the
Underwriter that:
(a) This Agreement has been duly authorized, executed and
delivered by such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and
the performance by such Selling Stockholder of its obligations under, this
Agreement will not contravene (A) the organizational documents of such
Selling Stockholder, (B) any agreement or other instrument binding upon
such Selling Stockholder that is material to such Selling Stockholder, (C)
any provision of applicable law or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such Selling
Stockholder, except, in the case of clauses (B) and (C), such
contraventions as would not reasonably be expected to have a Material
Adverse Effect; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required for the performance by such Selling Stockholder of
its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date (as
defined below) will have, valid title to, or a valid "security
entitlement" within the meaning of Section 8-501 of the New York Uniform
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Commercial Code (the "UCC") in respect of, the Shares to be sold by such
Selling Stockholder, free and clear of all security interests, claims,
liens, equities or other encumbrances, and has the legal right and power,
and all authorization and approval required by law, to enter into this
Agreement, and to sell, transfer and deliver the Shares to be sold by such
Selling Stockholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by such Selling
Shareholder pursuant to this Agreement, delivery of such Shares, as
directed by the Underwriter, to Cede & Co. ("CEDE") or such other nominee
as may be designated by The Depository Trust Company ("DTC"), registration
of such Shares in the name of Cede or such other nominee and the crediting
of such Shares on the books of DTC to securities account of the
Underwriter (assuming that neither DTC nor the Underwriter has notice of
any adverse claim (within the meaning of Section 8-105 of the UCC) to such
Shares), (A) DTC shall be a "protected purchaser" of such Shares within
the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the
UCC, the Underwriter will acquire a valid security entitlement in respect
of such Shares and (C) no action based on any "adverse claim", within the
meaning of Section 8-102 of the UCC, to such Shares may be asserted
against the Underwriter with respect to such security entitlement; for
purposes of this representation, such Selling Stockholder may assume that
when such payment, delivery and crediting occur, (x) such Shares will have
been registered in the name of Cede or another nominee designated by DTC,
in each case on the Company's share registry in accordance with its
certificate of incorporation, bylaws and applicable law, (y) DTC will be
registered as a "clearing corporation" within the meaning of Section 8-102
of the UCC and (z) appropriate entries to the account of the Underwriter
on the records of DTC will have been made pursuant to the UCC.
(e) The BCP Selling Stockholders represent and warrant that (i)
the BCP Selling Stockholders Information contained in the Registration
Statement, when it became effective, did not contain, and if the
Registration Statement is amended or supplemented, will not contain, any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading and (ii) the BCP
Selling Stockholders Information contained in the Time or Sale Prospectus
or the Prospectus does not contain and, if the Time of Sale Prospectus is
amended or supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the representations and
warranties set forth in this paragraph are limited solely to BCP Selling
Stockholders Information. The Underwriter and the BCP Selling Stockholders
agree that
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"BCP SELLING STOCKHOLDERS INFORMATION" consists solely of the information
with respect to the BCP Selling Stockholders under the caption "Principal
and Selling Stockholders" in each of the Time of Sale Prospectus and the
Prospectus.
(f) BACI represents and warrants that (i) the BACI Information
contained in the Registration Statement, when it became effective, did not
contain, and if the Registration Statement is amended or supplemented,
will not contain, any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein not misleading
and (ii) the BACI Information contained in the Time of Sale Prospectus and
the Prospectus does not contain and, if the Prospectus is amended or
supplemented, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the representations and warranties set forth in this
paragraph are limited solely to BACI Information. The Underwriter and BACI
agree that "BACI INFORMATION" consists solely of the information with
respect to BACI under the caption "Principal and Selling Stockholders" in
each of the Time of Sale Prospectus and the Prospectus.
3. Agreements to Sell and Purchase. Each Selling Stockholder, severally
and not jointly, hereby agrees to sell to the Underwriter, and the Underwriter,
upon the basis of the representations and warranties contained in this
Agreement, but subject to its terms and conditions, agrees to purchase from such
Selling Stockholder at $21.05 a share (the "PURCHASE PRICE") the number of Firm
Shares set forth in Schedule I opposite the name of such Selling Shareholder.
On the basis of the representations and warranties contained in this
Agreement, but subject to its terms and conditions, each Selling Stockholder,
severally and not jointly, agrees to sell to the Underwriter, and the
Underwriter shall have the right to purchase up to the number of Additional
Shares set forth in Schedule I hereto at the Purchase Price. You may exercise
this right in whole or from time to time in part by giving written notice to the
Selling Stockholders and the Company not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriter and the date on which such Additional
Shares are to be purchased. If less than all Additional Shares are to be
purchased, each Selling Stockholder shall sell the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased by the Underwriter on such Option Closing Date as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Selling Stockholder bears to the total number of Firm Shares. Each purchase date
must be at least two (2) business
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days after the written notice is given and may not be earlier than the closing
date for the Firm Shares nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 5 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each day, if any, that Additional Shares are to
be purchased (an "OPTION CLOSING DATE"), the Underwriter agrees to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) set forth in the exercise notice described above.
The Company hereby agrees that, without the prior written consent of the
Underwriter, it will not, during the period ending 60 days after the date of the
Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock; (ii) file or cause to be
filed any registration statement with the Commission relating to the offering of
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; or (iii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i), (ii) or (iii) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the sale of Shares to be sold hereunder, (B) issuances by the Company of
shares of Common Stock (x) upon conversion, redemption, exchange or otherwise
pursuant to the terms of the Company's Convertible Perpetual Preferred Stock or
(y) upon the exercise of an option, warrant or a similar security or the
conversion of a security outstanding on the date hereof and reflected in the
Prospectus, (C) the grants by the Company of options or stock, or the issuance
by the Company of stock, under its benefit plans described in the Prospectus,
(D) sales and transfers permitted under the Celanese Americas Retirement Savings
Plan, (E) the issuance by the Company of shares of Common Stock in connection
with the acquisition of, a joint venture with or a merger with, another company,
and the filing of a registration statement with respect thereto; provided that
the recipient of such shares agrees in writing with the Underwriter in an
agreement in the form substantially identical to Exhibit H hereto, not to offer,
pledge, sell, contract to sell, sell any option or contract to purchase, grant
any option, right or warrant to purchase, lend, or otherwise transfer, directly
or indirectly, any such shares or options during such 60-day period without the
prior written consent of the Underwriter, (F) transactions by any person other
than the Company, relating to shares of Common Stock or other securities
acquired in the open market or other transactions after the completion of this
offering, or (G) the filing of a registration statement pursuant to the
registration rights of any of the Selling Stockholders.
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4. Terms of Public Offering. The Company and each Selling Stockholder
are advised by you that the Underwriter proposes to make a public offering of
the Shares on the terms set forth in the Prospectus as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable.
5. Payment and Delivery. Payment for the Firm Shares shall be made to
the Selling Stockholders in Federal or other funds immediately available in New
York City against delivery of such Firm Shares for the account of the
Underwriter at 10:00 a.m., New York City time, on May 15, 2006, or at such other
time on the same or such other date, not later than May 25, 2006, as may be
agreed to by you and the Selling Stockholders. The time and date of such payment
are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Selling
Stockholders in Federal or other funds immediately available in New York City
against delivery of such Additional Shares for the account of the Underwriter at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than June 25, 2006, as may be agreed to by you and
the Selling Stockholders.
The Firm Shares and Additional Shares shall be registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or an Option Closing Date, as the case may
be, for the account of the Underwriter, with any transfer taxes payable in
connection with the transfer of the Shares to the Underwriter duly paid, against
payment of the Purchase Price therefor.
6. Conditions to the Underwriter's Obligations. The obligations of the
Underwriter are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
securities of the Company by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
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(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Time of Sale Prospectus that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus.
(b) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied in all material respects with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date a
certificate dated the Closing Date and signed by an authorized officer of
each Selling Stockholder, to the effect that the representations and
warranties of such Selling Stockholder contained in this Agreement are
true and correct as of the Closing Date and that such Selling Stockholder
has complied in all material respects with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
(d) The Underwriter shall have received on the Closing Date (i) an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special outside counsel for the
Company and the BCP Selling Stockholders, to the effect set forth in
Exhibit A, (ii) an opinion of Walkers, special Cayman Islands counsel for
the BCP Selling Stockholders, to the effect set forth in Exhibit B, (iii)
an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President, General Counsel
and Corporate Secretary of the Company, to the effect set forth in Exhibit
C, (iv) an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special outside counsel for
BACI, to the effect set forth in Exhibit D and (v) an opinion of ▇▇▇▇▇▇
and Calder, special Cayman Islands counsel for BACI to the effect set
forth in Exhibit E, each dated the Closing Date.
(e) The Underwriter shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriter, dated the
Closing Date to the effect set forth in Exhibit G.
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(f) The Underwriter shall have received, on the Closing Date, a
letter dated the date hereof, in form and substance satisfactory to the
Underwriter, from each of KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft Wirtschaftsprufungsgesellschaft, independent registered
public accountants and KPMG LLP, independent registered public
accountants, 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 the Prospectus; provided that the letters
shall use a "cut-off date" not earlier than the business day prior to the
date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit H hereto, between you and each of the Selling Stockholders
relating to sales and certain other dispositions of shares of Common Stock
or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The obligations of the Underwriter to purchase Additional Shares hereunder
are subject to the delivery to you on the applicable Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares to be sold
on such Option Closing Date and other matters related to the sale of such
Additional Shares.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriter herein contained, the Company covenants with the Underwriter
as follows:
(a) To furnish, upon request, to you, without charge, a copy of
the signed Registration Statement (including exhibits thereto) and to
furnish to you in New York City, without charge, prior to 10:00 a.m. New
York City time on the second business day next succeeding the date of this
Agreement and during the period mentioned in Sections 7(e) and 7(f) below,
as many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement as you
may reasonably request.
(b) Before amending or supplementing the Registration Statement,
the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object, and to
file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
12
(c) To furnish to you a copy of each proposed free writing
prospectus to be prepared by or on behalf of, used by, or referred to by
the Company and not to use or refer to any proposed free writing
prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or
the Company being required to file with the Commission pursuant to Rule
433(d) under the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(e) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriter
and counsel for the Company the Prospectus (or in lieu thereof the notice
referred to in Rule 173(e) under the Securities Act) is required by law to
be delivered in connection with sales by the Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary
to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(e) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel
for the Underwriter and counsel for the Company, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriter and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus (or in
lieu thereof the notice referred to in Rule 173(e) under the Securities
Act) is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law.
(f) If the Time of Sale Prospectus is being used to solicit offers
to buy the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition
exist as a result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement then on file in any
material respect, or if, in the opinion of counsel for the Underwriter and
counsel for the Company, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare,
13
file with the Commission and furnish, at its own expense, to the
Underwriter and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the
Time of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or
so that the Time of Sale Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering a period
of at least 12 months ending December 16, 2006 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. Covenant of the Underwriter. The Underwriter covenants with the
Company not to take any action that would result in the Company being required
to file with the Commission under Rule 433(d) a free writing prospectus prepared
by or on behalf of the Underwriter that otherwise would not be required to be
filed by the Company thereunder, but for the action of the Underwriter.
9. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement (except to the extent the Selling Stockholders
are obligated to pay or cause to be paid any expenses described below),
including: (i) the fees, disbursements and expenses of the counsel to the
Company and counsel(s) to the Selling Stockholders and the Company's accountants
in connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the preparation
and filing of the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or
on behalf of, used by, or referred to by the Company and amendments and
supplements to any of the foregoing, including the filing fees payable to the
Commission relating to the Securities (within the time required by Rule 456
(b)(1), if applicable), all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriter and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriter (excluding any transfer
or other taxes payable thereon, which shall be paid or caused to be paid by the
Selling Stockholders), (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the
14
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 7(g) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriter incurred in connection with the
review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) the costs and charges of any
transfer agent, registrar or depositary, (vi) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and one-half of the cost of any aircraft chartered in connection
with the road show, and (vii) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 10 entitled "Indemnity and Contribution" and
the last paragraph of Section 12 below, the Underwriter will pay all of its
costs and expenses, including fees and disbursements of its counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make. The provisions of
this Section shall not supersede or otherwise affect any agreement that the
Company and the Selling Stockholders may otherwise have for the allocation of
such expenses among themselves.
10. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless the Underwriter, each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and each
affiliate of the Underwriter within the meaning of Rule 405 under the Securities
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as
defined in Rule 433(h) under the Securities Act, any "issuer information" that
the Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
15
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon (i) information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein, (ii) BCP
Selling Stockholders Information or (iii) BACI Information.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
the Selling Stockholders, the directors of the Company, the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company or any Selling Stockholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to the Underwriter, but only
with reference to information relating to the Underwriter furnished to the
Company in writing by the Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus or the Prospectus or any amendments or
supplements thereto.
(c) Each BCP Selling Stockholder agrees to indemnify and hold harmless
the Underwriter, each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and each affiliate of the Underwriter within the meaning of Rule 405 under
the Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the BCP Selling Stockholders Information included in
the Registration Statement or any amendment thereof, any preliminary prospectus,
the Time of Sale Prospectus or the Prospectus (as amended or supplemented if the
BCP Selling Stockholders shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission with respect to the BCP
Selling Stockholders Information to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
liability of each BCP Selling Stockholder under the indemnity agreement
contained in this paragraph shall be limited to an amount equal to the total net
proceeds received by such BCP Selling Stockholder under this Agreement.
(d) BACI agrees to indemnify and hold harmless the Underwriter, each
person, if any, who controls the Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of the Underwriter within the meaning of Rule 405 under the Securities
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in
16
the BACI Information included in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus or the
Prospectus (as amended or supplemented if BACI shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission with respect to BACI Information to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The liability of BACI under the indemnity agreement contained in
this paragraph shall be limited to an amount equal to the total net proceeds
received by BACI under this Agreement.
(e) Pursuant to Section 3.2 of Amended and Restated Registration Rights
Agreement, dated as of January 26, 2005, by and among the Company and the
Selling Stockholders (the "REGISTRATION RIGHTS AGREEMENT"), each Selling
Stockholder agrees to indemnify and hold harmless the Company and the Company
Indemnified Parties (as such term is defined in the Registration Rights
Agreement) as set forth in Article III of the Registration Rights Agreement. The
Company and each of the Selling Stockholders acknowledge and agree that the
Company has agreed to indemnify and hold harmless the Selling Stockholders and
their Related Persons (as such term is defined in the Registration Rights
Agreement) as set forth in Article III of the Registration Rights Agreement.
(f) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 10(a), 10(b), 10(c) or 10(d) such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Underwriter and all persons, if any, who
control the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of the
Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one separate
17
firm (in addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (iii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Selling Stockholders and all persons, if any, who control any
Selling Stockholder within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriter and such control persons and affiliates
of the Underwriter, such firm shall be designated in writing by the Underwriter.
In the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the Selling
Stockholders and such control persons of any Selling Stockholders, such firm
shall be designated in writing by the Selling Stockholders. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding 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 includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(g) To the extent the indemnification provided for in Section 10(a),
10(b), 10(c) or 10(d) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, 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 losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriter on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 10(g)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 10(g)(i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and of the Underwriter on
the other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriter on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Selling Stockholders and the total
underwriting discounts and commissions received by
18
the Underwriter, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriter 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, the Selling Stockholders or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The liability
of each Selling Stockholder under the contribution agreement contained in this
paragraph shall be limited to an amount equal to the total net proceeds received
by such Selling Stockholder under this Agreement.
(h) The Company, the Selling Stockholders and the Underwriter agree that
it would not be just or equitable if contribution pursuant to this Section 10
were determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in Section
10(g). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that the Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 10 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(i) The indemnity and contribution provisions contained in this Section
10 and the representations, warranties and other statements of the Company and
the Selling Stockholders contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of the Underwriter, any person
controlling the Underwriter or any affiliate of the Underwriter, any Selling
Stockholder, any person controlling any Selling Stockholder, or by or on behalf
of the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
19
11. Termination. The Underwriter may terminate this Agreement by notice
given by you to the Company and the Selling Stockholders, if after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on, or by, as the case
may be, the New York Stock Exchange or the Nasdaq National Market, (ii) trading
of the Common Stock shall have been suspended on the New York Stock Exchange,
(iii) a material disruption in securities settlement, payment or clearance
services in the United States shall have occurred, (iv) any moratorium on
commercial banking activities shall have been declared by Federal or New York
State authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and which singly or together with any
other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus or the Prospectus.
12. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of the Company or any of the Selling Stockholders
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company or any of the Selling Stockholders shall be
unable to perform its obligations under this Agreement, the Company, in the case
of any failure, refusal or inability to perform on the part of the Company, or
such Selling Stockholder(s), in the case of any failure, refusal or inability to
perform on the part of such Selling Stockholder(s), will reimburse the
Underwriter for all out-of-pocket expenses (including the fees and disbursements
of its counsel) reasonably incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law; Submission to Jurisdiction; Appointment of Agent for
Service of Process.
(a) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
(b) Each of the Selling Stockholders irrevocably submits to the
non-exclusive jurisdiction of any New York State or United States Federal court
sitting in The City of New York over any suit, action or proceeding arising out
of or relating to this Agreement, the Time of Sale Prospectus, the Prospectus,
the
20
Registration Statement or the offering of the Shares. Each of the Selling
Stockholders irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in such a court and any claim that any such
suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. To the extent that any Selling Stockholder has or hereafter
may acquire any immunity (on the grounds of sovereignty or otherwise) from the
jurisdiction of any court or from any legal process with respect to itself or
its property, each Selling Stockholder irrevocably waives, to the fullest extent
permitted by law, such immunity in respect of any such suit, action or
proceeding.
(c) Each of the Selling Stockholders hereby irrevocably appoints
National Registered Agents, Inc., with offices at 875 Avenue of the Americas,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent for service of process in any
suit, action or proceeding described in the preceding paragraph and agrees that
service of process in any such suit, action or proceeding may be made upon it at
the office of such agent. Each of the Selling Stockholders waives, to the
fullest extent permitted by law, any other requirements of or objections to
personal jurisdiction with respect thereto. Each of the Selling Stockholder
represents and warrants that such agent has agreed to act as such Selling
Stockholder's agent for service of process, and such Selling Stockholder agrees
to take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect.
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
16. Entire Agreement; No Effect on Other Agreements. This Agreement,
together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the
offering of the Shares, represents the entire agreement between the Company and
the Selling Stockholders, on the one hand, and the Underwriter, on the other,
with respect to the preparation of the Prospectus, the conduct of the offering,
and the purchase and sale of the Shares. The provisions of this Agreement shall
not supersede, amend, terminate or otherwise affect any agreement among the
Company and the Selling Stockholders.
17. No Fiduciary Duty. Each of the Company and Selling Stockholders
acknowledges that in connection with the offering of the Shares: (i) the
Underwriter has acted at arms length, is not an agent of, and owes no fiduciary
duties to, the Company, the Selling Stockholders or any other person, (ii) the
Underwriter owes the Company and the Selling Stockholders only those duties and
obligations set forth in this Agreement and (iii) the Underwriter may have
interests that differ from those of the Company and the Selling Stockholders.
Each of the Company and the Selling Stockholders waives to the full extent
21
permitted by applicable law any claims it may have against the Underwriter
arising from an alleged breach of fiduciary duty in connection with the offering
of the Shares.
18. Notices. All communications under this Agreement shall be in writing
and effective only on receipt, and, if sent to the Underwriter, shall be mailed,
delivered or telefaxed to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ , attention: Control Room, with a copy to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇.; if sent to the Company, shall be mailed, delivered or
telefaxed to Celanese Corporation, ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, fax
no. (▇▇▇) ▇▇▇-▇▇▇▇, attention: General Counsel, with a copy to Simpson, Thacher
& ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (212)
▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III. and to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇. attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇; or if sent to the Selling Stockholders, shall be mailed, delivered
or telefaxed to Blackstone Capital Partners (Cayman) Ltd. 1, Blackstone Capital
Partners (Cayman) Ltd. 2 or Blackstone Capital Partners (Cayman) Ltd. 3, as the
case may be, ▇/▇ ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇ GT., ▇▇▇▇ Street, ▇▇▇▇▇▇ Town, Grand
Cayman, Cayman Islands, attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to Simpson,
Thacher & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (212)
▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III or to BA Capital Investors Sidecar
Fund, L.P., c/o Banc of America Capital Investors, L.P., Banc of America
Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax
no. (704) 386-6432attention: J. ▇▇▇▇▇▇ ▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇,
attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
[Signature pages follow]
22
If the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement in the space provided below.
Very truly yours,
CELANESE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President,
General Counsel and Corporate
Secretary
Blackstone Capital Partners (Cayman) Ltd. 1
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Blackstone Capital Partners (Cayman) Ltd. 2
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Blackstone Capital Partners (Cayman) Ltd. 3
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
BA Capital Investors Sidecar Fund, L.P.
By: BA Capital Management Sidecar, L.P., its
General Partner
By: BACM I Sidecar GP Limited, its General
Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Accepted as of the date hereof
/s/ ▇▇▇▇▇▇▇, Sachs & Co.
------------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
SCHEDULE I
NUMBER OF
NUMBER OF FIRM ADDITIONAL
SELLING STOCKHOLDER SHARES SHARES
------------------- ------ ------
Blackstone Capital Partners (Cayman) Ltd. 1................. 20,093,168 3,013,975
Blackstone Capital Partners (Cayman) Ltd. 2................. 1,393,519 209,028
Blackstone Capital Partners (Cayman) Ltd. 3................. 10,924,556 1,638,683
BA Capital Investors Sidecar Fund, L.P. .................... 2,588,757 388,314
---------- ---------
Total:............................................. 35,000,000 5,250,000
========== =========
SCHEDULE II
EXHIBIT A
[FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP]
EXHIBIT B
[FORM OF OPINION OF WALKERS]
EXHIBIT C
[FORM OF OPINION OF EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND
CORPORATE SECRETARY OF THE COMPANY]
EXHIBIT D
[FORM OF OPINION OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP]
EXHIBIT E
[FORM OF OPINION OF ▇▇▇▇▇▇ AND CALDER]
EXHIBIT F
[FORM OF OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
EXHIBIT G
[FORM OF OPINION OF ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇]
EXHIBIT H
FORM OF LOCK-UP AGREEMENT
May 9, 2006
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (the
"Underwriter") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with Celanese Corporation, a Delaware corporation (the
"Company" and certain stockholders of the Company (the "Selling Stockholders"),
providing for the public offering (the "Public Offering") by the Underwriter of
shares (the "Common Shares") of the Series A Common Stock, par value $.0001 per
share of the Company (the "Common Stock") to be sold by the Selling Stockholders
identified in the Underwriting Agreement.
To induce the Underwriter to continue its efforts in connection with
the Public Offering, the undersigned hereby agrees that, without the prior
written consent of the Underwriter, it will not, during the period commencing on
the date hereof and ending 60 days after the date of the final prospectus
relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other securities, in cash
or otherwise. The foregoing sentence shall not apply to (A) distributions of
shares of Common Stock or any security convertible into Common Stock to limited
partners or stockholders of the Selling Stockholders, provided that the
recipients of such Common Stock agree to be bound by the restrictions described
in this Lock-Up Agreement for the remainder of the 60-day period or (B)
transactions by any person other than the Company relating to shares of Common
Stock acquired in open market transactions after the completion of this
offering. In addition, the undersigned agrees that, without the prior written
consent of the Underwriter, it will not, during the period commencing on the
date hereof and ending 60 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock; provided that, if the undersigned
is a party to the Amended and Restated Registration Rights Agreement, dated as
of January 26, 2005, by and among Blackstone Capital Partners (Cayman) Ltd. 1 et
al., the undersigned may issue to the Company a notice of demand pursuant
thereto so long as no registration statement is filed during such 60-day period.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's shares of Common Stock except in compliance with
the foregoing restrictions.
The undersigned understands that the Company and the Underwriter are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriter.
Very truly yours,
------------------------
[Name]
[Address]
