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Exhibit 10.1
DATED AUGUST 19, 2005
Between
CELANESE EUROPE HOLDING GMBH & CO. KG
as the Purchaser
and
PAULSON & CO. INC AND
ARNHOLD AND S. BLEICHROEDER ADVISERS, LLC,
EACH ON BEHALF OF ITS OWN AND WITH RESPECT TO SHARES OWNED BY
THE INVESTMENT FUNDS AND
SEPARATE ACCOUNTS MANAGED BY IT
as the Sellers
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SHARE PURCHASE AND TRANSFER AGREEMENT
AND SETTLEMENT AGREEMENT
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THIS SHARE PURCHASE AND TRANSFER AGREEMENT
AND SETTLEMENT AGREEMENT (this
"AGREEMENT") is made on August 19, 2005
BETWEEN:
(1) CELANESE EUROPE HOLDING GMBH
& CO. KG, a limited partnership
(Kommanditgesellschaft) organized under the laws of the Federal
Republic
of Germany
with registered office (Sitz) at Kronberg i.T., registered with
the
commercial register of the Local Court (Amtsgericht)
Koenigstein,
Germany,
under registration number HRA 2970 (the "PURCHASER")
AND
(2) PAULSON & CO. INC., a
corporation organized under the laws of the State of
Delaware,
with its principal offices at 590 Madison Avenue, New York, NY
10022, USA
("PAULSON"), acting on its own behalf as well as with respect
to the
Shares (as defined below) owned by the investment funds and
separate
accounts managed by it; and
(3) ARNHOLD AND S. BLEICHROEDER
ADVISERS, LLC, a limited liability company
established under the laws of the State of Delaware, with its
principal
offices at
1345 Avenue of the Americas, New York, NY 10105, USA ("ASB" and
together
with Paulson, the "SELLERS"), acting on its own behalf as well
as
with
respect to the Shares (as defined below) owned by the
investment
funds and
separate accounts managed by it.
The Sellers and the Purchaser are also
collectively referred to hereinafter as
the "PARTIES" and each individually as a
"PARTY".
PREAMBLE:
A. Pursuant to a
voluntary public takeover offer (the "TENDER OFFER") the
Purchaser
acquired in April 2004 approximately 82.6% of the outstanding
shares in
Celanese Aktiengesellschaft, a stock corporation organized
under
the laws
of the Federal Republic of Germany, with registered office
(Sitz)
in
Kronberg i.T., Germany, registered with the commercial register of
the
Local
Court Koenigstein under registration number HRB 5277 (the
"COMPANY").
B. The registered share
capital of the Company in the nominal amount of EUR
140,069,354 is divided into 54,790,369 registered shares with no
par value
(auf den
Namen lautende Stuckaktien) (the "SHARES"). The Shares are
admitted
to trading on the official market (Amtlicher Markt) of the
Frankfurt
Stock Exchange. The Shares are traded on the Frankfurt Stock
Exchange
and through the electronic trading system XETRA under the
symbol
"CZZ",
under the German Securities Identification Number
(Wertpapierkennnummer) (WKN) 575 300 and under the
International
Securities
Identification Number (ISIN) DE 0005753008. The Shares were
delisted
from the New York Stock Exchange on June 2, 2004.
C. On June 22, 2004, the
Purchaser and the Company entered into a domination
and profit
and loss transfer agreement (Beherrschungs- und
Gewinnabfuhrungsvertrag) (the "DOMINATION AGREEMENT"). The
Domination
Agreement
was submitted to a shareholder vote, and approved, at an
extraordinary general meeting of the Company held on July 30 and
31, 2004
(the
"EGM"). The Domination Agreement was registered in the
commercial
register
of the Local Court of Koenigstein im Taunus on August 2, 2004
and,
under
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the terms
thereof, became operative on October 1, 2004. In connection
with
the
Domination Agreement, the Purchaser has offered, pursuant to a
mandatory
offer required by Section 305(1) of the German Stock
Corporation
Act, the
minority shareholders (ausstehende Aktionare) of the Company a
"fair cash
compensation" (angemessene Barabfindung) in exchange for their
Shares in
the amount of EUR 41.92 per Share (the "MANDATORY OFFER"). In
addition,
under the Domination Agreement, pursuant to Section 304(1),
sentence 1
of the German Stock Corporation Act, any minority shareholder
who elects
not to tender its Shares into the Mandatory Offer and to remain
a
shareholder of the Company is entitled to receive a certain
guaranteed
fixed
annual dividend (Ausgleich) per Share in lieu of any future
dividend
payments.
D. Following the EGM,
certain minority shareholders of the Company, whose
names are
set forth in Annex A (the "ORIGINAL PLAINTIFFS") brought
forward
legal
actions with the Frankfurt District Court (Landgericht) and
requested
the court to set aside the shareholder resolutions passed at
the
EGM
(collectively, the "ORIGINAL ACTIONS"). Several minority
shareholders
have
joined the Original Actions via third party interventions in
support
of the Original Plaintiffs. The
Purchaser has joined the proceedings via a
third
party intervention in support of the Company. In September 2004,
the
Frankfurt
District Court consolidated the Original Actions (file no. 3-05
O 112/04).
One minority shareholder, Metropol Vermoegensverwaltungs- und
Grundstuecks-GmbH, Cologne, Germany (the "AVOIDANCE PLAINTIFF"
and
together
with the Original Plaintiffs, the "PLAINTIFFS"), brought
forward
an
additional action (file no. 3-05 O 61/05) with the Frankfurt
District
Court and
requested the court to rule that the shareholder resolutions
passed at
the EGM were void (Nichtigkeitsklage) (the "AVOIDANCE
PROCEEDINGS"). In addition, several minority shareholders
(including
Paulson
and the Plaintiffs) have initiated special award proceedings
(Spruchverfahren) seeking the court's review of the amounts of the
fair
cash
compensation and the guaranteed fixed annual dividend offered
under
the
Domination Agreement (collectively, the "AWARD PROCEEDINGS"). In
March
2005, the
Frankfurt District Court dismissed the motions of all minority
shareholders regarding the initiation of the Award Proceedings
as
inadmissible. The ruling of the court is, however, subject to
pending
appeals
(sofortige Beschwerden) (collectively, the "APPEALS") including
appeals of
Paulson and the Plaintiffs with the Frankfurt Higher District
Court
(Oberlandesgericht).
E. A ratification
resolution (Bestatigungsbeschluss) to ratify the
shareholders' resolutions passed at the EGM was submitted to a
shareholder
vote, and
approved, at the annual general meeting of the Company held on
May 19 and
20, 2005 (the "AGM"). Following the AGM, several minority
shareholders of the Company (including Paulson and the Plaintiffs)
brought
forward
legal actions with the Frankfurt District Court against the
shareholders' resolutions passed at the AGM as well, and requested
that
the court
set aside the ratification resolution (collectively, the
"ADDITIONAL ACTIONS"). In June 2005, the Frankfurt District Court
has
suspended
the proceedings regarding the Original Actions until a
judicially
final and binding decision is rendered with regard to the
Additional
Actions and consolidated the Additional Actions (file no. 3-05
O
71/05).
F. In addition to the
Original Actions, the Avoidance Action, the Award
Proceedings, the Appeals and the Additional Actions, certain
minority
shareholders have instituted the legal proceedings set forth in
Annex B
against,
among others, the Company and the Purchaser in connection with
the Tender
Offer and the Domination Agreement (these proceedings together
with the
Original Actions, the Avoidance Action, the Award Proceedings,
the
Appeals and the Additional Actions, and together with any and
all
other
legal proceedings commenced against the Company or the Purchaser
or
any of
their affiliates before, on or
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after the
date hereof relating in any way to the subject matter of any of
the
foregoing, the "LEGAL PROCEEDINGS").
G. As of today, Paulson
and the investment funds and separate accounts
managed by
it own in the aggregate 5,758,299 Shares (the "PAULSON
SHARES"),
representing approximately 11.43% of the outstanding shares of
the
Company; and ASB and the investment funds and separate accounts
managed by
it own in the aggregate 160,000 Shares (the "ASB SHARES" and
together
with the Paulson Shares, the "SELLERS' SHARES"), representing
approximately 0.32% of the outstanding Shares of the Company. The
Sellers'
Shares are
currently held in book entry form within the Clearstream
Banking AG
booking system in various securities accounts of the Sellers
and of the
investment funds and separate accounts managed by the Sellers.
IT IS AGREED as follows:
1. SUBJECT MATTER OF THIS
AGREEMENT; CONDITION PRECEDENT
The
subject matter of this Agreement is (i) the sale and transfer of
all
Shares
held by the Sellers and the investment funds and separate
accounts
managed by
the Sellers to the Purchaser as well as (ii) the settlement of
all Legal
Proceedings, to the extent the Sellers are a party to the Legal
Proceedings; (iii) the agreement by the Sellers not to make
future
investments in the Company; and (iv) a general release relating to
their
investment
in the Company.
2. SALE AND PURCHASE OF
SHARES
2.1 Paulson hereby sells to the
Purchaser, and the Purchaser hereby purchases
from
Paulson, the Paulson Shares; and ASB hereby sells to the
Purchaser,
and the
Purchaser hereby purchases from ASB, the ASB Shares. For the
avoidance
of doubt, the sale and purchase of the Sellers' Shares pursuant
to this
Agreement shall include all Shares held, directly or
indirectly,
by the
Sellers and the investment funds and separate accounts managed
by
them,
irrespective of whether the description of the Shares and the
Sellers'
Shares set forth in recitals B and G of the Preamble or
elsewhere
herein is
true and complete.
2.2 The sale and purchase of the
Sellers' Shares contemplated by this
Agreement
shall be made with all rights attached to the Sellers' Shares
(the
"ANCILLARY RIGHTS"), including, without limitation, the rights
to
receive
dividends and all subscription rights (Bezugsrechte). The right
to
receive
dividends shall include the right to receive, in part or in
total,
the
guaranteed fixed annual dividend for the current fiscal year
2004/2005
as well as
the right to receive dividends for all previous fiscal years of
the
Company, to the extent that profits of previous fiscal years have
not
been
distributed as of the date hereof. The Ancillary Rights shall
also
include
any right to participate in an increase of the amount of the
fair
cash
compensation and/or the guaranteed fixed annual payment as a
result
of, or in
connection with the Award Proceedings or other proceedings or
agreements
irrespective of whether such increase occurs through a court
ruling, an agreement
amongst the parties to the Award Proceedings or
otherwise.
3. PURCHASE PRICE
3.1 The purchase price for the
Sellers' Shares amounts to EUR 51.00 per share
(the "BASE
PURCHASE PRICE"). In addition to the Base Purchase Price and as
consideration for the Sellers' undertakings and the settlement set
forth
in Section
7 below, the Sellers shall be
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entitled
to an additional payment of EUR 2.00 per share (the "ADDITIONAL
PURCHASE
PRICE"). Thus, the aggregate purchase price (i.e., Base
Purchase
Price and
Additional Purchase Price) for the 5,758,299 Shares sold by
Paulson
amounts to EUR 305,189,847.00 (the "PAULSON PURCHASE PRICE");
and
the
aggregate purchase price (i.e., Base Purchase Price and
Additional
Purchase
Price) for the 160,000 Shares sold by ASB amounts to EUR
8,480,000.00 (the "ASB PURCHASE PRICE").
3.2 The Purchaser shall pay the
Paulson Purchase Price and the ASB Purchase
Price in
accordance with the provisions of Section 4 below to bank
accounts
of the Sellers specified by the Sellers (the "SELLERS' BANK
ACCOUNTS").
A credit
made to the Sellers' Bank Accounts shall have the effect of
discharging the Purchaser in a corresponding amount from its
obligation
(schuldbefreiende Wirkung) to pay the Purchase Price to the
respective
Seller.
4. TRANSFER OF SHARES
4.1 The Sellers' Shares are
hereby assigned and transferred as follows:
(a)
Paulson, on its
own behalf and on behalf of the investment funds and
separate accounts managed by it, hereby assigns and transfers to
the
Purchaser who accepts such transfer and assignment, the Paulson
Shares, which transfer and assignment shall include all
Ancillary
Rights attached to the Paulson Shares.
(b)
ASB, on its own
behalf and on behalf of the investment funds and
separate
accounts managed by it, hereby assigns and transfers to the
Purchaser who accepts such transfer and assignment, the ASB
Shares,
which transfer and assignment shall include all Ancillary
Rights
attached to the ASB Shares.
The
assignment and transfer of the Paulson Shares shall, however,
be
subject to
the condition precedent of complete payment of the Paulson
Purchase
Price by the Purchaser to the bank accounts specified by
Paulson;
and the
assignment and transfer of the ASB Shares shall, however, be
subject to
the condition precedent of complete payment of the ASB Purchase
Price by
the Purchaser to the bank accounts specified by ASB (each, a
"CONDITION
TO TRANSFER OF TITLE").
4.2 In order to ensure transfer
of title in the Sellers' Shares, the Parties
shall take
the following actions concurrently (Zug um Zug) as soon as the
Sellers
have fully complied with their obligations under Section
7.1(a):
(a)
The Sellers
shall procure that (i) the Paulson Shares are
transferred to the securities deposit of the Purchaser specified
by
the Purchaser (the "PURCHASER'S SECURITIES DEPOSIT") by making
a
corresponding book-entry transfer (Girosammelgutschrift)
concurrently (Zug um Zug) with the payment by the Purchaser of
the
Paulson Purchase Price into the Paulson bank accounts; and (ii)
the
ASB Shares are transferred to the Purchaser's Securities Deposit
by
making a corresponding book-entry transfer
(Girosammelgutschrift)
concurrently with the payment by the Purchaser of the ASB
Purchase
Price into the ASB bank accounts.
(b)
The Purchaser
shall irrevocably instruct its bank in writing to (i)
transfer the Paulson Purchase Price from its cash account with
its
bank to the Paulson bank accounts free of any bank charges, by
wire
transfer in immediately available funds in Euro concurrently
with
the transfer of the Paulson shares to the Purchaser's
Securities
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Deposit; and (ii) transfer the ASB Purchase Price from its cash
account with its bank to the ASB bank accounts free of any bank
charges, by wire transfer in immediately available funds in
Euro
concurrently with the transfer of the ASB shares to the
Purchaser's
Securities Deposit.
(c)
The Parties
shall take any other action, make any other declaration
and execute any such document which is required or which the
Purchaser reasonably requests to be executed in order to
transfer
title in the Sellers' Shares to the Purchaser.
4.3 The Parties agree that, from
the execution hereof and until the occurrence
of the
transfer of the Sellers' Shares to the Purchaser's Securities
Deposit by
way of book entry transfer, the Sellers shall hold the Sellers'
Shares in
custody for the Purchaser, free of any charges or costs.
5. REPRESENTATIONS AND
WARRANTIES
5.1 Each Seller hereby
represents and warrants severally by way of an
independent guarantee (selbstandiges Garantieversprechen) pursuant
to
Section
311(1) German Civil Code (Burgerliches Gesetzbuch ), except as
otherwise
is expressly provided for herein, as of the date hereof and, if
different,
as of the date when the transfer of the Shares pursuant to
Section 4
above becomes effective, as follows:
(a)
Paulson
represents and warrants that it is a corporation duly
organized, validly existing and in good standing under the laws
of
the State of Delaware. ASB represents and warrants that it is a
limited liability company duly organized, validly existing and
in
good standing under the laws of the State of Delaware.
(b)
Each Seller
represents and warrants that it has all requisite power
and authority to execute and deliver this Agreement and to
perform
its obligations hereunder and to consummate the transactions
contemplated hereby. Each Seller represents and warrants that
the
execution and delivery of this Agreement, the performance of
such
Seller's obligations hereunder and the consummation of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate and other proceedings on
the
part of the respective Seller. Each Seller represents and
warrants
that this Agreement has been duly executed and delivered by
such
Seller, and assuming the due execution hereof by the Purchaser,
this
Agreement constitutes the legal, valid and binding obligation
of
such Seller in accordance with its terms.
(c)
Each Seller
represents and warrants that it or the investment funds
and separate accounts managed by it have good and valid title to
the
Sellers' Shares sold and to be transferred by such Seller, free
and
clear of any liens, claims, encumbrances, security interests,
options, pre-emptive, drag-along or tag-along rights, rights of
first refusal or first offer, charges or restrictions of any
kind
(collectively, "LIENS"). Each of the Sellers represents and
warrants
that upon book-entry of the transfer of such Seller's Shares in
the
Purchaser's Security Deposit, good and valid title to such
Seller's
Shares sold and to be transferred by such Seller will pass to
the
Purchaser, free and clear of any Liens, except for Liens
arising
from acts of the Purchaser.
5.2 The Purchaser hereby
represents and warrants by way of an independent
guarantee
(selbstandiges Garantieversprechen) pursuant to Section 311(1)
German
Civil Code (Burgerliches Gesetzbuch), except as otherwise is
expressly
provided for herein, as of the
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date
hereof and, if different, as of the date when the transfer of
the
Shares
pursuant to Section 4 above becomes effective, as follows:
(a)
The Purchaser
represents and warrants that it is a limited
partnership (Kommanditgesellschaft) organized, validly existing
and
in good standing under the laws of the Federal Republic of
Germany.
(b)
The Purchaser
represents and warrants that it has all requisite
power and authority to execute and deliver this Agreement and
to
perform its obligations hereunder and to consummate the
transactions
contemplated hereby.
The Purchaser represents and
