Exhibit 10.2
AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
by and among
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD.
1,
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD.
2,
BLACKSTONE CAPITAL PARTNERS (CAYMAN) LTD.
3,
BA CAPITAL INVESTORS SIDECAR FUND,
L.P.
and
CELANESE CORPORATION
Dated as of January 26, 2005
AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
THIS AMENDED AND
RESTATED REGISTRATION RIGHTS AGREEMENT is dated January 26, 2005
and is by and among Blackstone Capital Partners (Cayman)
Ltd. 1, an exempted company incorporated under the laws of the
Cayman Islands (“ BCP 1 ”), Blackstone Capital
Partners (Cayman) Ltd. 2, an exempted company incorporated
under the laws of the Cayman Islands (“ BCP 2
”), Blackstone Capital Partners (Cayman) Ltd. 3, an
exempted company incorporated under the laws of the Cayman Islands
(“ BCP 3 ”), BA Capital Investors Sidecar Fund,
L.P., a Cayman Islands limited partnership (“ BACI
”), and Celanese Corporation, a Delaware corporation
(formerly known as Blackstone Crystal Holdings Capital Partners
(Cayman) IV Ltd.) (together with any successor thereto, the
“ Company ”).
BACKGROUND
1.
In connection with the
consummation of the voluntary public takeover offer by a subsidiary
of the Company for all of the outstanding registered ordinary
shares of Celanese AG, a German stock corporation, the
Blackstone Entities (as defined in Section 1.1) and BACI acquired ordinary shares, par value $0.01 per
share (the “ Ordinary Shares ”), of the
Company .
2.
The Blackstone Entities and BACI entered into the Registration
Rights Agreement, dated as of April 6, 2004 (the “
Original Agreement ”) to provide for certain matters
relating to their holdings of Ordinary Shares.
3.
On November 3, 2004, the Company migrated from the Cayman Islands
to the State of Delaware, redomiciled itself as a Delaware
corporation and changed its name from “Blackstone Crystal
Holdings Capital Partners (Cayman) IV Ltd.” to
“Celanese Corporation.”
4.
In connection with, and effective upon, the Initial Public Offering
(as defined in Section 1.1) of the Company, and in accordance with
Section 4.2 of the Original Agreement, the parties to the Original
Agreement wish to amend and restate the Original Agreement in its
entirety in order to set forth certain understandings regarding
their holdings of Common Stock following consummation of the
Initial Public Offering.
The parties agree
as follows:
DEFINITIONS
SECTION 1.1
Certain Definitions . As used in this
Agreement:
“
Affiliate ” means, with respect to any Person,
(i) any Person that directly or indirectly controls, is
controlled by or is under common control with, such Person or
(ii) any director, officer, member, partner (including limited
partners) or employee of such Person or any Person specified in
clause (i) above; provided , that officers, directors
or employees of the Company will be deemed not to be Affiliates of
the Shareholders for
purposes
hereof solely by reason of being officers, directors or employees
of the Company.
“
Agreement ” means this Amended and Restated
Registration Rights Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
“
BACI ” has the meaning set forth in the
preamble.
“ BCP
1 ” has the meaning set forth in the preamble.
“ BCP
2 ” has the meaning set forth in the preamble.
“ BCP
3 ” has the meaning set forth in the preamble.
“
Blackstone Entities ” means collectively BCP 1,
BCP 2, BCP 3 and/or any Affiliate of BCP 1,
BCP 2, or BCP 3 that holds Registrable
Securities.
“
Business Day ” means a day other than a Saturday,
Sunday, federal or New York State holiday or other day on which
commercial banks in New York City are authorized or required by law
to close.
“
Common Stock ” means the shares of Series A common
stock and Series B common stock, par value $0.0001 per share, of
the Company, and any other capital stock of the Company into which
such stock is reclassified or reconstituted and any other common
stock of the Company.
“
Common Stock Equivalents ” means any security or
obligation which is by its terms convertible, exchangeable or
exercisable into or for shares of Common Stock, whether at the time
of issuance or upon the passage of time or the occurrence of some
future event.
“
Company ” has the meaning set forth in the
preamble.
“
Designated Counsel ” means counsel to the selling
Shareholders participating in a registration pursuant hereto which
counsel is selected by the holders of a majority of the Registrable
Securities being registered in the relevant
registration.
“
Employee Stockholders ” has the meaning ascribed
thereto in the Employee Stockholders’ Agreement.
“
Employee Stockholders’ Agreement ” means the
Employee Stockholders’ Agreement, dated as of January 26,
2005, by and among Celanese Corporation and the other parties named
therein (as the same may be amended, supplemented, restated or
otherwise modified from time to time).
“
Holdback Period ” has the meaning set forth in Section
2.3.
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“
Initial Public Offering ” means the closing of the
first sale of common equity or equivalent securities of the Company
to the public pursuant to an effective registration statement
(other than a registration statement on Form S-4 or S-8 or any
similar or successor form) filed under the Securities
Act.
“
Inspector ” has the meaning set forth in Section
2.4(k).
“
Ordinary Shares ” has the meaning set forth in the
preamble.
“
Person ” means any individual, corporation, limited
liability company, partnership, trust, joint stock company,
business trust, unincorporated association, joint venture,
governmental authority or other entity of any nature
whatsoever.
“
Registrable Securities ” means (x) any shares of
Common Stock, (y) any shares of Common Stock owned or to be
acquired upon conversion, exercise or exchange of Common Stock
Equivalents and (z) any shares of Common Stock owned or to be
acquired in connection with a recapitalization, merger,
consolidation, exchange or other reorganization of the Company (or
any successor entity), in each case now or hereafter owned by the
Shareholders. As to any particular Registrable Securities,
once issued, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with
respect to the sale by the applicable Shareholder of such
securities has become effective under the Securities Act and such
securities have been disposed of in accordance with such
registration statement, (ii) such securities have been
distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) such
securities have been otherwise transferred, new certificates for
such securities not bearing a legend restricting further transfer
have been delivered by the Company and subsequent disposition of
such securities does not require registration or qualification of
such securities under the Securities Act or any state securities or
blue sky law then in force, (iv) such securities are sold to a
Person in a transaction in which rights under provisions of this
Agreement are not assigned in accordance with this Agreement, or
(v) such securities have ceased to be outstanding.
“
Registration Expenses ” means all expenses incident to
the Company’s performance of or compliance with this
Agreement, including, without limitation, all SEC and stock
exchange or National Association of Securities Dealers, Inc. (the
“ NASD ”) registration and filing fees and
expenses, fees and expenses of compliance with securities or blue
sky laws (including fees and disbursements of counsel for any
underwriters in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses,
messenger, telephone and delivery expenses, the fees and expenses
incurred in connection with the listing of the securities to be
registered on any securities exchange or national market system,
fees and disbursements of counsel for the Company and all
independent certified public accountants (including the expenses of
any annual audit, special audit and “cold comfort”
letters required by or incident to such performance and
compliance), securities laws liability insurance (if the Company so
desires (or if the underwriters of the applicable offering so
require)), the fees and disbursements of underwriters (including,
without limitation, all fees and expenses of any “qualified
independent underwriter” required by the rules of the NASD)
customarily paid
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by issuers or
sellers of securities in public equity offerings, the expenses
customarily borne by the issuers of securities in a “road
show” presentation to potential investors, the fees and
expenses of any special experts retained by the Company in
connection with such registration, the fees and expenses of other
persons retained by the Company and all fees and expenses of any
selling Shareholder participating in a registration pursuant hereto
(including fees and expenses of Designated Counsel), other than
underwriting discounts or commissions or transfer taxes, if any,
attributable to the sale of shares of Registrable Securities by
such selling Shareholder.
“
SEC ” means the U.S. Securities and Exchange
Commission.
“
Securities Act ” means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder, as
the same may be amended from time to time.
“
Shareholders ” means each of the Blackstone Entities
and BACI collectively, and “ Shareholder ” means
any one of the Shareholders.
“
Transferee ” means any Person to whom any Shareholder
or any Transferee thereof transfers Registrable
Securities.
SECTION 1.2
Other Definitional
Provisions; Interpretation .
(a)
The words “ hereof ,” “ herein
,” and “ hereunder ” and words of similar
import when used in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
section and subsection references are to this Agreement unless
otherwise specified.
(b)
The headings in this Agreement are included for convenience of
reference only and do not limit or otherwise affect the meaning or
interpretation of this Agreement.
(c)
The meanings given to terms defined herein are equally applicable
to both the singular and plural forms of such terms.
REGISTRATION RIGHTS
SECTION 2.1
Incidental
Registration .
(a)
If the Company proposes to register any of its securities under the
Securities Act (other than a registration statement on Form S-4 or
S-8), whether or not for its own account (and including any
registration pursuant to a request or demand right of any other
Person), then the Company will each such time give prompt written
notice thereof to the Shareholders of their rights under this
Section 2.1, at least 15 Business Days prior to the
anticipated filing date of such registration statement. Such
notice shall offer the Shareholders the opportunity to include in
such registration statement such number of Registrable Securities
as each Shareholder may request. Upon the written request of
any Shareholder made within 15 Business Days after the receipt of
any such notice from the Company, which request shall specify the
number of
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Registrable
Securities intended to be disposed of by such Shareholder in such
offering, the Company will use its reasonable best efforts to
effect the registration under the Securities Act, as expeditiously
as is possible, of all the Registrable Securities which the Company
has been so requested to register by the Shareholders, subject to
Section 2.1(b); provided , that until the six-month
anniversary of the Initial Public Offering (or such shorter period
as the underwriters for such Initial Public Offering shall require
of either the Blackstone Entities or BACI), BACI shall not be
permitted to include any Registrable Securities in such
registration unless any of the Blackstone Entities include any
Registrable Securities in such registration; provided ,
further , that if, at any time after giving written notice
of its intention to register any securities and prior to the
effective date of the registration statement filed in connection
with such registration, the Company or any other holder of
securities that initiated such registration (an “
Initiating Holder ”) shall determine for any reason
not to proceed with the proposed registration, the Company may at
its election (or the election of such Initiating Holder(s) as
applicable) give written notice of such determination to the
Shareholders and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration
Expenses incurred in connection therewith).
(b)
If a registration pursuant to this Section 2.1 involves an
underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of securities
which the Company and the holders of the Registrable Securities and
any other Persons intend to include in such registration exceeds
the maximum number of securities which can be sold in such offering
without having an adverse effect on such offering (including the
price at which such securities can be sold), then the number of
such securities to be included in such registration shall be
reduced to such extent, and the Company will include in such
registration such maximum number of securities as follows:
(i) if such registration has been initiated by a Demand Party,
then in the manner provided in Section 2.2(b); or (ii) if such
registration has been initiated by the Company, then (A)
first , all of the securities the Company proposes to sell
for its own account, if any; and (B) second , such
number of Registrable Securities requested to be included in such
registration by the Shareholders and such number of securities of
the Company requested to be included in such registration by any
other holders of securities of the Company (including any Employee
Stockholders) having equivalent rights under similar agreements
(including the Employee Stockholders’ Agreement), which, in
the opinion of such managing underwriter can be sold without having
the adverse effect described above, which number of securities
shall be allocated pro
rata among such Shareholders and such other holders on
the basis of the relative number of Registrable Securities then
held by each such Shareholder and the number of securities subject
to such equivalent rights held by such other holders;
provided , that any such amount thereby allocated to each
such Shareholder or such other holder of such securities that
exceeds such Shareholder’s or such other holder’s
request shall be reallocated among the Shareholders and such other
holders in like manner, as applicable.
(c)
The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities pursuant to this
Section 2.1.
SECTION 2.2
Demand Registration . (a) Upon the written
request from time to time (a “ Request ”) of any
of the Blackstone Entities (a “ Demand Party ”)
that the Company effect the registration under the Securities Act
of all or part of such Demand Party’s Registrable Securities
and specifying the amount and intended method of disposition
thereof, the Company
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will promptly give written notice of such
requested registration to the other Shareholders and, as
expeditiously as possible, use its reasonable best efforts to
effect the registration under the Securities Act of:
(1)
such Registrable Securities which the Company has been so requested
to register by the Demand Party; and
(2)
the Registrable Securities of other Shareholders which the Company
has been requested to register by written request given to the
Company within 10 days after the giving of such written notice
by the Company (which request shall specify the amount and intended
method of disposition of such securities).
The Demand
Party shall have the right to select the managing underwriter or
underwriters to administer the offerings covered by its
Requests.
(b)
If a requested registration pursuant to this Section 2.2
involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration exceeds
the maximum number of securities which can be sold in such offering
without having an adverse effect on such offering (including the
price at which such securities can be sold), then the number of
such securities to be included in such registration shall be
reduced to such extent, and the Company will include in such
registration such maximum number of securities as follows: (i)
first , the number of Registrable Securities requested to be
included in such registration by the Shareholders, which number
shall be allocated pro
rata among all such requesting Shareholders based on the
relative number of Registrable Securities then held by each such
requesting Shareholder; (ii) second , the number of
securities of the Company requested to be registered by holders of
securities (including any Employee Stockholders) having equivalent
rights under similar agreements (including the Employee
Stockholders’ Agreement); and (iii) third , the number
of securities of the Company proposed to be sold by the Company, if
any.
(c)
If a requested registration pursuant to this Section 2.2
involves an underwritten offering and the managing underwriter
advises the Company that, in its opinion, certain disclosure is of
material importance to the success of such proposed offering, then
the Company shall cooperate with the managing underwriter to
provide such disclosure. The Company agrees to include in any
registration statement all information which, in the reasonable
view of counsel to the underwriters (if any) or Designated Counsel,
is required to be included.
(d)
The Demand Party shall be permitted to request that any
registration under this Section 2.2 be made under
Rule 415 under the Securities Act (the “ Shelf
Registration ”). The Company shall use its
commercially reasonable efforts to effect such Shelf Registration
and to keep it continuously effective until such date on which
there are no Registrable Securities covered by such
registration. During the period during which the Shelf
Registration is effective, the Company shall supplement or make
amendments to the Shelf Registration, if required by the Securities
Act or if reasonably requested by the Demand Party or an
underwriter of Registrable Securities to be sold pursuant thereto,
including to reflect any specific plan of distribution or method of
sale, and shall use its reasonable best efforts to have such
supplements and amendments declared effective, if required, as soon
as practicable after filing.
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(e)
The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities pursuant to this
Section 2.2.
SECTION 2.3
Holdback .
(a)
Restrictions on Sale by the Shareholders . In
connection with any underwritten public offering of securities of
the Company, each Shareholder agrees not to effect any sale or
distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, and not to
effect any sale or distribution of other securities of the Company
or of any securities convertible into or exchangeable or
exercisable for any other securities of the Company (in each case,
other than as part of such underwritten public offering) in each
case, during the seven days prior to, and during such period as the
managing underwriter may require (not to exceed 90 days, or,
in the case of the Initial Public Offering, 180 days) (the period
during which such restriction applies, the “ Holdback
Period ”) beginning on, the closing date of the sale of
such securities pursuant to an effective registration statement,
except as part of such registration; provided ,
however , that this provision shall not apply if (i) such
Shareholder owns, at the time of such registration and throughout
the Holdback Period, less than 2% of all outstanding shares of
Common Stock and (ii) such Shareholder is not participating in such
public offering.
(b)
Restrictions on Sale by the Company and Others . In
connection with any underwritten public offering of securities of
the Company, the Company agrees (i) not to effect any sale or
distribution, and to use its reasonable best efforts to cause its
directors and officers not to effect any sale or distribution, of
any shares of Common Stock, Common Stock Equivalents or other
securities of the Company or of any security convertible into or
exchangeable or exercisable for any shares of Common Stock, Common
Stock Equivalents or other securities of the Company (other than in
connection with an employee stock option or other benefit plans)
during the seven days prior to, and during the same period
applicable to the Shareholders in connection with such offering
pursuant to Section 2.3(a) beginning on, the closing date of
the sale of such securities pursuant to an effective registration
statement, except as part of such registration, and (ii) that
any agreement entered into after the date of this Agreement
pursuant to which the Company issues or agrees to issue any
privately placed shares of Common Stock, Common Stock Equivalents
or other equity securities shall contain a provision under which
holders of such securities agree not to effect any sale or
distribution of any such securities during the period referred to
in the foregoing clause (i), except as part of such
registration, if permitted.
SECTION 2.4
Other Registration-Related Matters . If and whenever
the Company is required to use its reasonable best efforts to
effect or cause the registration of any Registrable Securities
under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(a)
in the case of a registration as provided in this Agreement, use
its reasonable best efforts to prepare and file with the SEC within
45 days (or, in the case of a registration statement on
Form S-3, within seven days) after receipt of a request for
registration with respect to such Registrable Securities, a
registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem
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appropriate, and which form shall be available
for the sale of the Registrable Securities in accordance with the
intended methods of distribution thereof, and use its reasonable
best efforts to cause such registration statement to become and
remain effective as promptly as practicable, subject to the right
of the Demand Party to defer the Company’s request for the
acceleration of effectiveness of any such registration statement as
may be necessary to accommodate the anticipated timetable for such
offering; provided , that before filing with the SEC a
registration statement or prospectus or any a
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