Exhibit (e)(2)
CONFIDENTIALITY AGREEMENT
between
Celanese AG
("Company")
and
Kuwait Petroleum Corporation
("KPC")
(Company and KPC together the "Parties")
dated
28 August 2002
PREAMBLE
WHEREAS a potential bidder ("Bidder") is interested to acquire
all outstanding shares in the Company by way of a public take-over bid to the
shareholders of the Company (the "Takeover Bid" or "Transaction").
WHEREAS KPC holds about 26 percent of the shares in the
Company and has indicated its interest to participate in the Transaction by
selling its shareholding in the Company to the Bidder.
WHEREAS KPC shall receive based on, and subject to, the terms
and conditions of this confidentiality agreement (the "Agreement") certain
information relating to the Company.
NOW THEREFORE, the parties hereto agree as follows:
I.
CONFIDENTIAL AND PUBLIC INFORMATION
1. All information (whether written or oral) furnished (whether before or
after the date hereof) by or on behalf of the Company, or any of its
affiliates, agents and advisors, to KPC, or any of its directors,
officers, employees, agents and advisors (collectively
"Representatives"), in connection with the Transaction and all
analyses, compilations, forecasts, studies or other documents prepared
by KPC or its Representatives which contain or reflect any such
information shall be confidential ("Confidential Information").
2. The term "Confidential Information" does not include any information
that (i) at the time of the disclosure or thereafter is generally
available to, and known by, the public (other than as a result of an
unauthorised disclosure, directly or indirectly, by KPC or its
Representatives), (ii) was available to KPC on a non-confidential basis
from a source other than the Company, any of its affiliates, agents or
advisors, provided, that
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such source is not, and was not known to KPC to be bound by a
confidentiality obligation to the Company, or any of its affiliates, or
(iii) has been independently acquired or developed by KPC without
violating any of its obligations under this Agreement (altogether
"Public Information").
II.
DUTIES AND OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION
1. Confidential Information will be used solely for the purpose of
evaluating the Transaction by KPC and will not be used in any way,
directly or indirectly, in a manner which might be detrimental to the
Company, or any of its affiliates.
Such information will be kept strictly confidential by KPC, except that
KPC may disclose the Confidential Information, or portions thereof, to
those of its Representatives who need to have such information for the
purpose of evaluating the Transaction, it being understood that, before
disclosing the Confidential Information, or any portion thereof, to any
of its Representatives, KPC will inform them as to the confidential
nature of the Confidential Information and obtain their agreement to be
bound by this Agreement.
2. In the event that KPC, or any of its Representatives, becomes legally
compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process or otherwise)
to disclose any of the Confidential Information, KPC shall promptly
notify the Company of such requirements so that the Company, or any of
its affiliates, may seek a protective order or other appropriate
remedy. KPC shall demonstrate reasonable efforts to support the Company
in seeking such protective order, and the Company shall reimburse KPC
for all reasonable costs, if any, arising from such support.
3. If the Transaction should finally not be consummated, KPC will promptly
(i) return to the Company or destroy all copies of the Confidential
Information in the possession of KPC or any of its Representatives and
destroy any analyses, compilations, forecasts, studies, other documents
or electronic data prepared by KPC, or for the use of KPC, containing
or reflecting any Confidential Information and (ii) confirm in
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writing to the Company that all such material has been returned or
destroyed, respectively, in compliance with the terms of this
Agreement.
4. Without the prior written consent of the Company neither KPC nor any of
its Representatives will disclose to any third party that KPC or the
Bidder have requested or received Confidential Information from the
Company, or any of its affiliates, agents or advisors.
5. It is further agreed that KPC and any of its Representatives shall not
disclose the existence of the discussions on the Transaction to any
supplier or customer of the Company, or any of its affiliates, without
the Company's express consent.
6. KPC further acknowledges that the Company, or any of its affiliates, do
not make any representation or warranty, either express or implied, as
to the accuracy or completeness of the Confidential Information. KPC
agrees that neither the Company or any of its affiliates nor any of
their directors, officers, employees, agents and advisors shall have
any liability to KPC, or any of its Representatives, resulting from any
use of the Confidential Information by KPC or its Representatives,
except as, and to the extent, expressly provided in the definitive
agreements relating to the Transaction.
7. KPC hereby undertakes to indemnify and compensate the Company, or any
of its affiliates, from any and all liabilities and damages, reasonable
costs, or losses suffered by the Company, or any of its affiliates,
caused by any breach or non-performance of any of KPC's, duties and
obligations pursuant to this Agreement.
III.
TERMINATION OF DISCUSSIONS
1. Pursuant to the confidentiality agreement in place between the Company
and the Bidder, the Company is entitled at any time to terminate any
discussions concerning the Transaction ("Termination") or to enter into
any transaction with a third party without prior notice to the other
party. If the Company so decides all claims for damages, irrespective
of their bases, including culpa in contrahendo are excluded,
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unless such damage claims are based on proven gross negligence or
willful misconduct.
2. This Agreement shall terminate on the third anniversary of the date of
termination of the discussions between the Company and the Bidder as
evidenced by written statement by the Company to KPC or, in any event,
the latest on the fifth anniversary on the date hereof.
IV.
FEES AND EXPENSES
Each party shall bear its own expenses and fees in connection with the
actions contemplated herein.
V.
MISCELLANEOUS
1. If any of the provisions of this Agreement should be or become invalid
or should not contain a necessary regulation, the validity of the other
provisions of this Agreement shall not be affected thereby. The invalid
provision shall be replaced and the gap be filled by a legally valid
arrangement which would correspond as closely as possible to the
intention of the parties or what would have been the intention of the
parties according to the aim and purpose of this Agreement if they had
recognized the gap.
2. This Agreement shall be governed by the laws of the Federal Republic of
Germany. The courts of Frankfurt am Main shall have jurisdiction for
all disputes out of, or in connection with, this Agreement including
disputes about its validity.
Celanese AG
By /s/Xxxxxxx Xxxxxxxx /s/ Joachim Kaffanke
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Xxxxxxx Xxxxxxxx Joachim Kaffanke
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Date September 11, 2002
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Kuwait Petroleum Company
By /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Deputy Chairman & Chief Executive Officer
Date 8.9.2002
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