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EXHIBIT 4.4
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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
BLACKSTONE CRYSTAL HOLDINGS CAPITAL PARTNERS (CAYMAN) IV LTD.
DATED AS OF APRIL 6, 2004
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TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS...................................................................................1
SECTION 1.1
CERTAIN
DEFINITIONS...........................................................1
SECTION 1.2
OTHER DEFINITIONAL PROVISIONS;
INTERPRETATION.................................3
ARTICLE II REGISTRATION
RIGHTS..........................................................................4
SECTION 2.1
INCIDENTAL
REGISTRATION.......................................................4
SECTION 2.2
DEMAND
REGISTRATION...........................................................5
SECTION 2.3
HOLDBACK......................................................................6
SECTION 2.4
OTHER REGISTRATION-RELATED
MATTERS............................................7
ARTICLE III
INDEMNIFICATION............................................................................11
SECTION 3.1
INDEMNIFICATION BY THE
COMPANY...............................................11
SECTION 3.2
INDEMNIFICATION BY THE
SHAREHOLDERS..........................................11
SECTION 3.3
NOTICES OF CLAIMS,
ETC.......................................................12
SECTION 3.4
CONTRIBUTION.................................................................13
SECTION 3.5
OTHER
INDEMNIFICATION........................................................14
SECTION 3.6
NON-EXCLUSIVITY..............................................................14
SECTION 3.7
INDEMNIFICATION
PAYMENTS.....................................................14
ARTICLE IV
OTHER.......................................................................................14
SECTION 4.1
REMEDIES.....................................................................14
SECTION 4.2
AMENDMENTS,
WAIVERS..........................................................14
SECTION 4.3
SUCCESSORS; ASSIGNS;
TRANSFEREES.............................................14
SECTION 4.4
NOTICES......................................................................14
SECTION 4.5
INTEGRATION..................................................................15
SECTION 4.6
SEVERABILITY.................................................................16
SECTION 4.7
COUNTERPARTS.................................................................16
SECTION 4.8
LIMITED
LIABILITY............................................................16
SECTION 4.9
RULE
144.....................................................................16
SECTION 4.10
OTHER REGISTRATION
RIGHTS....................................................16
SECTION 4.11
REDOMICILIATION..............................................................17
SECTION 4.12
GOVERNING
LAW................................................................17
SECTION 4.13
JURISDICTION.................................................................17
SECTION 4.14
MUTUAL WAIVER OF JURY
TRIAL..................................................17
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is dated April 6, 2004 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 Blackstone Crystal Holdings
Capital Partners (Cayman) IV Ltd., an
exempted company incorporated under the
laws of the Cayman Islands (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 below) and
BACI will purchase Ordinary Shares
(as defined below).
2.
The Shareholders (as defined below) and the Company wish to
provide for certain matters relating to
their holdings of Ordinary Shares.
The parties agree as follows:
ARTICLE I
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 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.
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"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.
"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.
"HOLDBACK PERIOD" has the meaning set forth in Section 2.3.
"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" means the ordinary shares, par value $0.01
per
share, of the
Company.
"ORDINARY SHARE EQUIVALENTS" means any warrants, options and rights
or
securities
convertible into, exchangeable or exercisable for Ordinary
Shares.
"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.
"REDOMICILIATION" has the meaning set forth in Section 4.11.
"REGISTRABLE SECURITIES" means (i) any Ordinary Shares, (ii)
any
Ordinary Shares
owned or to be acquired upon conversion, exercise or
exchange of
Ordinary Share Equivalents and (iii) any shares owned or to be
acquired in
respect of Ordinary Shares in connection with the
Redomiciliation
or 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
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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
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.
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(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.
ARTICLE II
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 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 largest 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, all of the securities the
Company proposes to sell for its own
account, if any, PROVIDED that the
registration of such securities was
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initiated by the Company with respect to
securities intended to be registered
for sale for its own account; and (ii)
SECOND, such number of Registrable
Securities requested to be included in such
registration by the Shareholders
which, in the opinion of such managing
underwriter can be sold without having
the adverse effect described above, which
number of Registrable Securities shall
be allocated PRO RATA among such
Shareholders on the basis of the relative
number of Registrable Securities then held
by each such Shareholder; PROVIDED
that any such amount thereby allocated to
each such Shareholder that exceeds
such Shareholder's request shall be
reallocated among the Shareholders 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 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 by the Shareholders
exceeds the largest number of
securities which can be sold in such
offering without having an adverse effect
on such offering (including the price at
which the securities can be sold) then
the Company shall include in such
registration such number of Registrable
Securities requested to be included in such
registration which, in the opinion
of such managing underwriter, can be sold
without having the adverse effect
described above, 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. In the event that the number of
Registrable Securities which the
Shareholders have requested to include is less
than the number of securities which, in the
opinion of the managing underwriter,
can be sold in such offering without having
the adverse effect referred to
above, then the Company shall be entitled
to include in such registration, for
its own account, up to that number of
securities which, in the opinion of such
managing underwriter, can be sold without
having the adverse result on the
offering referred to above.
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(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.
(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 Ordinary
Shares 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 Ordinary Shares,
Ordinary Share Equivalents or other
securities of the Company or of any
security convertible into or exchangeable or
exercisable for any Ordinary Shares,
Ordinary Share 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
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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 Ordinary Shares, Ordinary
Share 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
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 amendments or supplements
thereto, the
Company will (i) furnish to the selling Shareholders
