As filed with the Securities and Exchange Commission on
May 9, 2006
Registration
No.
333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CELANESE CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware
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98-0420726
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(State of Incorporation)
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(I.R.S. Employer Identification No.)
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1601 West LBJ Freeway
Dallas, TX 75234-6034
(972) 443-4000
(Address, including zip code, and telephone number, including
area code, of Registrant’s principal executive offices)
Curtis S. Shaw, Esq.
Executive Vice President,
General Counsel and Corporate Secretary
Celanese Corporation
1601 West LBJ Freeway
Dallas, TX 75234-6034
(972) 443-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Edward P. Tolley III, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price Per
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Aggregate
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Amount of
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Securities to be Registered
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Registered(1)(2)
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Share(1)(2)
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Offering Price(1)(2)
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Registration Fee(3)
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Series A Common Stock, par value $.0001 per share(1)
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—
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Preferred Stock, par value $.01 per share(1)
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—
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—
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—
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—
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Depositary Shares(1)(2)
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—
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—
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—
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—
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(1)
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There is being registered hereby such indeterminate number of
the securities of each identified class as may from time to time
be issued at indeterminate prices. There is also being
registered hereby such indeterminate number of our securities as
may from time to time be issued upon conversion, exercise or
exchange of any other securities registered hereby.
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(2)
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Each depositary share issued hereunder will be issued under a
deposit agreement and will represent an interest in a fractional
share or multiple shares of preferred stock and will be
evidenced by a depositary receipt.
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(3)
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Since an unspecified amount of securities registered hereby will
be offered from time to time at indeterminate offering prices
pursuant to an automatic shelf registration statement, the
Registrant has elected to rely on Rule 456(b) and
Rule 457(r) of the Securities Act of 1933, as amended, to
defer payment of the registration fee.
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PROSPECTUS
CELANESE CORPORATION
SERIES A COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
We may offer and sell shares of our Series A common stock,
preferred stock or depositary shares from time to time in
amounts, at prices and on terms that will be determined at the
time of any such offering. In addition, certain selling
stockholders may offer and sell shares of our Series A
common stock, from time to time in amounts, at prices and on
terms that will be determined at the time of any such offering.
Each time any securities are offered pursuant to this
prospectus, we will provide a prospectus supplement and attach
it to this prospectus. The prospectus supplement will contain
more specific information about the offering, including the
names of any selling stockholders, if applicable. The prospectus
supplement may also add, update or change information contained
in this prospectus. This prospectus may not be used to offer or
sell securities without a prospectus supplement describing the
method and terms of the offering.
You should carefully read this prospectus and any accompanying
prospectus supplement, together with the documents we
incorporate by reference, before you invest in our securities.
Our Series A common stock is listed on the New York Stock
Exchange under the symbol “CE”.
Investing in our securities involves risks. You should
consider the risk factors described in any accompanying
prospectus supplement and in the documents we incorporate by
reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
May 9, 2006
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on
Form
S-3
that we
filed with the Securities and Exchange Commission using a
“shelf” registration process. Under this shelf
registration process, we and/or certain selling stockholders, if
applicable, may, from time to time, offer and/or sell securities
in one or more offerings or resales. Each time securities are
offered, we will provide a prospectus supplement and attach it
to this prospectus. The prospectus supplement will contain more
specific information about the offering, including the names of
any selling stockholders, if applicable. The prospectus
supplement may also add, update or change information contained
in this prospectus. Any statement that we make in this
prospectus will be modified or superseded by any inconsistent
statement made by us in a prospectus supplement. You should read
both this prospectus and any accompanying prospectus supplement
together with the additional information described under the
heading “Incorporation of Certain Documents by
Reference.”
You should rely only on the information contained in this
prospectus. Neither we nor any of our subsidiaries has
authorized anyone to provide you with information different from
that contained in this prospectus. The prospectus may be used
only for the purposes for which it has been published and no
person has been authorized to give any information not contained
in this prospectus. If you receive any other information, you
should not rely on it. We are not making an offer of these
securities in any state where the offer is not permitted.
You should not assume that the information in this
prospectus, any accompanying prospectus supplement or any
documents we incorporate by reference is accurate as of any date
other than the date on the front of these documents. Our
business, financial condition, results of operations and
prospectus may have changed since that date.
AVAILABLE INFORMATION
We are required to file annual, quarterly and current reports,
proxy statements and other information with the Securities and
Exchange Commission (the “SEC”). You may read and copy
any documents filed by us at the SEC’s public reference
room at 100 F Street, N.E., Washington, D.C. 20549. Please
call the SEC at
1-800-SEC-0330
for
further information on the public reference room. Our filings
with the SEC are also available to the public through the
SEC’s Internet site at http://www.sec.gov and through the
New York Stock Exchange, 20 Broad Street, New York, New
York 10005, on which our common stock is listed.
We have filed with the SEC a registration statement on
Form
S-3
related
to the securities covered by this prospectus. This prospectus is
a part of the registration statement and does not contain all
the information in the registration statement. Whenever a
reference is made in this prospectus to a contract or other
document of the company, the reference is only a summary and you
should refer to the exhibits that are a part of the registration
statement for a copy of the contract or other document. You may
review a copy of the registration statement at the SEC’s
public reference room in Washington, D.C., as well as
through the SEC’s Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the
information contained in documents that we file with them, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is considered to be part of this prospectus and
supersedes information incorporated by reference that we filed
with the SEC prior to the date of this prospectus. Information
that we file in the future with the SEC automatically will
update and supersede, as appropriate, the information contained
in this prospectus and in the documents previously filed with
the SEC and incorporated by reference into this prospectus. We
incorporate by reference the documents listed below and any
future filings we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, on or after the date of this
prospectus so long as the registration statement of which this
prospectus is a part remains effective:
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our Annual Report on
Form
10-K
for the
fiscal year ended December 31, 2005, filed on
March 31, 2006;
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our Quarterly Report on
Form
10-Q
for the
quarterly period ended March 31, 2006, filed on May 9,
2006;
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our Current Reports on
Form
8-K,
filed on
January 6, 2006, March 7, 2006, March 13, 2006,
April 6, 2006 and April 11, 2006; and
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the description of our Series A common stock contained in
our Form
8-A,
filed on January 18, 2005.
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You can request a copy of these filings at no cost, by writing
or calling us at the following address:
Celanese Corporation
1601 West
LBJ Freeway
Dallas,
TX 75234-6034
(972) 443-4000
You should read the information in this prospectus together with
the information in the documents incorporated by reference.
Nothing contained herein shall be deemed to incorporate
information furnished to, but not filed with, the SEC.
1
OUR COMPANY
All references in this prospectus to “we,”
“our” and “us” refer collectively to
Celanese Corporation and its consolidated subsidiaries.
We are an integrated global producer of value-added industrial
chemicals and have the first or second market positions
worldwide in products comprising the majority of our sales. We
are the world’s largest producer of acetyl products,
including acetic acid and vinyl acetate monomer
(“VAM”), polyacetal products (“POM”), as
well as a leading global producer of high-performance engineered
polymers used in consumer and industrial products and designed
to meet highly technical customer requirements. Our operations
are located in North America, Europe and Asia. In addition, we
have substantial ventures primarily in Asia. We believe we are
one of the lowest-cost producers of key building block chemicals
in the acetyls chain, such as acetic acid and VAM, due to our
economies of scale, operating efficiencies and proprietary
production technologies. We have a large and diverse global
customer base consisting principally of major companies in a
broad array of industries.
We operate primarily through four business seqments: Chemical
Products, Technical Polymers Ticona, Acetate Products and
Performance Products.
Our Chemical Products segment produces and supplies acetyl
products, including acetic acid, acetate esters, VAM, polyvinyl
alcohol and emulsions. We are a leading global producer of
acetic acid, the world’s largest producer of VAM and the
largest North American producer of methanol, the major raw
material used for the production of acetic acid. We are also the
largest polyvinyl alcohol producer in North America. These
products are generally used as building blocks for value-added
products or in intermediate chemicals used in the paints,
coatings, inks, adhesives, films, textiles and building products
industries. Other chemicals produced in this segment are organic
solvents and intermediates for pharmaceutical, agricultural and
chemical products.
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Technical Polymers Ticona
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Our Technical Polymers Ticona segment (“Ticona”)
develops, produces and supplies a broad portfolio of high
performance technical polymers for use in automotive and
electronics products and in other consumer and industrial
applications, often replacing metal or glass. Together with our
45%-owned venture Polyplastics Co. Ltd
(“Polyplastics”), our 50%-owned venture Korea
Engineering Plastics Company Ltd., or KEPCO, and Fortron
Industries, our 50-50 venture with Kureha Chemicals Industry of
Japan, we are a leading participant in the global technical
polymers business. The primary products of Ticona are polyacetal
products, or POM, and GUR, an ultra-high molecular weight
polyethylene. POM is used in a broad range of products including
automotive components, electronics and appliances. GUR is used
in battery separators, conveyor belts, filtration equipment,
coatings and medical devices.
Our Acetate Products segment primarily produces and supplies
acetate tow, which is used in the production of filter products.
We are one of the world’s leading producers of acetate tow
including production by our ventures in China. In October 2004,
we announced plans to consolidate our acetate flake and tow
manufacturing by early 2007 and to exit the acetate filament
business, which ceased production in April 2005. This
restructuring has been implemented to increase efficiency,
reduce over-capacities in certain manufacturing areas and to
focus on products and markets that provide long-term value.
The Performance Products segment operates under the trade name
of Nutrinova and produces and sells a high intensity sweetener
and food protection ingredients, such as sorbates, for the food,
beverage and pharmaceuticals industries.
Our principal executive offices are located at 1601 West
LBJ Freeway, Dallas, TX 75234-6034 and our main telephone number
is
+1-972-443-4000.
2
SUMMARY
The following summary describes the securities that may be
offered pursuant to this prospectus in general terms only. You
should read the summary together with the more detailed
information contained in the rest of this prospectus and the
applicable prospectus supplement.
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Common Stock
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We and/or certain selling stockholders may sell shares of our
Series A common stock, par value $.0001 per share. In
a prospectus supplement, we will describe the aggregate number
of shares offered and the offering price or prices of the shares.
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Preferred Stock
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We may sell our preferred stock, par value $.01 per share,
in one or more series. In a prospectus supplement, we will
describe the specific designation, the aggregate number of
shares offered, the dividend rate or manner of calculating the
dividend rate, the dividend periods or manner of calculating the
dividend periods, the stated value of the shares of the series,
the voting rights of the shares of the series, whether or not
and on what terms the shares of the series will be convertible
or exchangeable, whether and on what terms we can redeem the
shares of the series, whether we will offer depositary shares
representing shares of the series and if so, the fraction or
multiple of a share of preferred stock represented by each
depositary share, whether we will list the preferred stock or
depositary shares on a securities exchange and any other
specific terms of the series of preferred stock.
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Terms Specified in
Prospectus Supplement
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When we decide to sell particular securities, we will prepare a
prospectus supplement, describing the securities offering and
the specific terms of the securities. You should carefully read
this prospectus and any applicable prospectus supplement. We may
also prepare free writing prospectuses that describe particular
securities. Any free writing prospectus should also be read in
connection with this prospectus and with any other prospectus
supplement referred to therein. For purposes of this prospectus,
any reference to an applicable prospectus supplement may also
refer to a free writing prospectus, unless the context otherwise
requires.
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We will offer our securities to investors on terms determined by
market and other conditions. Our securities may be sold for
U.S. dollars or foreign currency.
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In any prospectus supplement we prepare, we will provide the
name of and compensation to each dealer, underwriter or agent,
if any, involved in the sale of the securities being offered and
the managing underwriters for any securities sold to or through
underwriters.
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3
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by
reference contain certain forward-looking statements and
information relating to us that are based on the beliefs of our
management as well as assumptions made by, and information
currently available to, us. These statements include, but are
not limited to, statements about our strategies, plans,
objectives, expectations, intentions, expenditures, and
assumptions and other statements contained in this prospectus
that are not historical facts. When used in this document, words
such as “anticipate,” “believe,”
“estimate,” “expect,” “intend,”
“plan” and “project” and similar
expressions, as they relate to us are intended to identify
forward-looking statements. These statements reflect our current
views with respect to future events, are not guarantees of
future performance and involve risks and uncertainties that are
difficult to predict. Further, certain forward-looking
statements are based upon assumptions as to future events that
may not prove to be accurate.
As used in this prospectus, the term “Domination
Agreement” refers to the domination and profit and loss
transfer agreement between CAG and our subsidiary, Celanese
Europe Holding GmbH & Co. KG, formerly known as BCP
Crystal Acquisition GmbH & Co. KG, a German limited
partnership (
Kommanditgesellschaft, KG
) (the
“Purchaser”), pursuant to which the Purchaser became
obligated on October 1, 2004 to offer to acquire all
outstanding ordinary shares of CAG from the minority
shareholders of CAG in return for payment of fair cash
compensation in accordance with German law. Celanese AG is
incorporated as a stock corporation (
Aktiengesellschaft,
AG) organized under the laws of the Federal Republic of Germany.
As used in this prospectus, the term “CAG” refers to
(i) prior to the organizational restructuring of Celanese
and certain of its subsidiaries in October 2004 (the
“Restructuring”), Celanese AG and Celanese Americas
Corporation, their consolidated subsidiaries, their
non-consolidated subsidiaries, ventures and other investments,
and (ii) following the Restructuring, Celanese AG, its
consolidated subsidiaries, its non-consolidated subsidiaries,
ventures and other investments, except that with respect to
shareholder and similar matters where the context indicates,
“CAG” refers to Celanese AG.
As used in this prospectus, the term “Sponsor” refers
to The Blackstone Group. The term “Original
Shareholders” refers to Blackstone Capital Partners
(Cayman) Ltd. 1, Blackstone Capital Partners (Cayman)
Ltd. 2, Blackstone Capital Partners (Cayman) Ltd. 3 and BA
Capital Investors Sidecar Fund, L.P.
As used in this prospectus, the term “second amended and
restated certificate of incorporation” refers to our Second
Amended and Restated Certificate of Incorporation. As used in
this prospectus, the term “by-laws” refers to our
Amended and Restated By-laws.
Many factors could cause our actual results, performance or
achievements to be materially different from any future results,
performance or achievements that may be expressed or implied by
such forward-looking statements. These factors include, among
other things:
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changes in general economic, business, political and regulatory
conditions in the countries or regions in which we operate;
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the length and depth of product and industry business cycles
particularly in the automotive, electrical, electronics and
construction industries;
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changes in the price and availability of raw materials,
particularly changes in the demand for, supply of, and market
prices of fuel oil, natural gas, coal, electricity and
petrochemicals such as ethylene, propylene and butane, including
changes in production quotas in OPEC countries and the
deregulation of the natural gas transmission industry in Europe;
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the ability to pass increases in raw material prices on to
customers or otherwise improve margins through price increases;
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the ability to maintain plant utilization rates and to implement
planned capacity additions and expansions;
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the ability to reduce production costs and improve productivity
by implementing technological improvements to existing plants;
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the existence of temporary industry surplus production capacity
resulting from the integration and
start-up
of new
world-scale plants;
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increased price competition and the introduction of competing
products by other companies;
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the ability to develop, introduce and market innovative
products, product grades and applications, particularly in the
Ticona and Performance Products segments of our business;
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changes in the degree of patent and other legal protection
afforded to our products;
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compliance costs and potential disruption or interruption of
production due to accidents or other unforeseen events or delays
in construction of facilities;
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potential liability for remedial actions under existing or
future environmental regulations;
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potential liability resulting from pending or future litigation,
or from changes in the laws, regulations or policies of
governments or other governmental activities in the countries in
which we operate;
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changes in currency exchange rates and interest rates;
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changes in the composition or restructuring of us or our
subsidiaries and the successful completion of acquisitions,
divestitures and venture activities;
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inability to successfully integrate current and future
acquisitions;
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pending or future challenges to the Domination
Agreement; and
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various other factors, both referenced and not referenced in
this prospectus.
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Many of these factors are macroeconomic in nature and are,
therefore, beyond our control. Should one or more of these risks
or uncertainties materialize, or should underlying assumptions
prove incorrect, our actual results, performance or achievements
may vary materially from those described in this prospectus and
the documents incorporated herein by reference as anticipated,
believed, estimated, expected, intended, planned or projected.
We neither intend nor assume any obligation to update these
forward-looking statements, which speak only as of their dates.
5
USE OF PROCEEDS
In the case of a sale of securities by us, the use of proceeds
will be specified in the applicable prospectus supplement. In
the case of a sale of Series A common stock by any selling
stockholders, we will not receive any of the proceeds from such
sale. We will pay all expenses (other than underwriting
discounts or commissions or transfer taxes) of the selling
stockholders in connection with any such offering.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth our ratio of earnings to combined
fixed charges and preferred stock dividends for the periods
indicated:
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Predecessor
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Successor
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Three Months
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Year Ended
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Three Months
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Nine Months
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Ended
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December 31
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Ended
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Ended
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Year Ended
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March 31,
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March 31,
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December 31,
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December 31,
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2001
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2002
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2003
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2004
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2004
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2005
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2005
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2006
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Ratio of earnings to combined fixed charges and preferred stock
dividends (1)
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3.4
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3.4
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5.6
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1.8
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1.2
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2.9
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(1)
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For purposes of calculating the ratio of earnings to combined
fixed charges and preferred stock dividends, earnings is the
amount resulting from (1) adding (a) earnings (loss)
from continuing operations before tax and minority interests,
(b) income distributions from equity investments,
(c) amortization of capitalized interest and (d) fixed
charges equity in net earnings of affiliates and
(2) subtracting equity in net earnings of affiliates. Fixed
charges is the sum of (w) interest expense,
(x) capitalized interest, (y) estimated interest
portion of rent expense and (z) guaranteed payment to CAG
minority shareholders. Preferred stock dividend is the amount of
cumulative undeclared and declared preferred stock dividends.
See our reports on file with the SEC pursuant to the Securities
Exchange Act of 1934, as described under “Available
Information,” for more information.
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6
DESCRIPTION OF CAPITAL STOCK
The following is a description of the material provisions of
our capital stock, as well as other material terms of our second
amended and restated certificate of incorporation and by-laws.
We refer you to our second amended and restated certificate of
incorporation and to our amended and restated by-laws, copies of
which have been filed as exhibits to the registration statement
of which this prospectus forms a part.
Authorized Capitalization
As of April 3, 2006, our authorized capital stock consisted
of (i) 500,000,000 shares of common stock, par value
$.0001 per share, consisting of 400,000,000 shares of
Series A common stock of which 158,562,161 shares were
issued and outstanding and 100,000,000 shares of
Series B common stock of which none were issued and
outstanding, and (ii) 100,000,000 shares of preferred
stock, par value $.01 per share, of which 9,600,000 were
designated convertible perpetual preferred stock and were issued
and outstanding. Following the payment of a special dividend to
holders of our Series B common stock in April 2005, all of
the then outstanding shares of Series B common stock
automatically converted into shares of our Series A common
stock pursuant to our second amended and restated certificate of
incorporation.
Voting Rights.
Holders of common stock are entitled to
one vote per share on all matters with respect to which the
holders of common stock are entitled to vote. The holders of the
Series A common stock and Series B common stock will
vote as a single class on all matters with respect to which the
holders of common stock are entitled to vote, except as
otherwise required by law and except that, in addition to any
other vote of stockholders required by law, the approval of the
holders of a majority of the outstanding shares of Series B
common stock, voting as a separate class, is also required to
approve any amendment to our second amended and restated
certificate of incorporation or by-laws, whether by merger,
consolidation or otherwise by operation of law, which would
adversely affect the rights of the Series B common stock.
The holders of common stock do not have cumulative voting rights
in the election of directors.
Dividend Rights.
Holders of common stock are entitled to
receive dividends if, as and when dividends are declared from
time to time by our board of directors out of funds legally
available for that purpose, after payment of dividends required
to be paid on outstanding preferred stock, as described below,
if any. Our senior credit facilities and indentures impose
restrictions on our ability to declare dividends with respect to
our common stock. Any decision to declare and pay dividends in
the future will be made at the discretion of our board of
directors and will depend on, among other things, our results of
operations, cash requirements, financial condition, contractual
restrictions and factors that our board of directors may deem
relevant.
Liquidation Rights.
Upon liquidation, dissolution or
winding up, the holders of common stock will be entitled to
receive ratably the assets available for distribution to the
stockholders after payment of liabilities and accrued but unpaid
dividends and liquidation preferences on any outstanding
preferred stock.
Other Matters.
The common stock has no preemptive rights
and, if fully paid, is not subject to further calls or
assessment by us. There are no redemption or sinking fund
provisions applicable to our common stock. All shares of our
common stock that will be outstanding at the time of the
completion of the offering will be fully paid and
non-assessable, and the shares of our Series A common stock
offered in this offering, upon payment and delivery in
accordance with the underwriting agreement, will be fully paid
and non-assessable.
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Our second amended and restated certificate of incorporation
authorizes our board of directors to establish one or more
series of preferred stock and to determine, with respect to any
series of preferred stock, the terms and rights of that series,
including:
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the designation of the series;
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the number of shares of the series, which our board of directors
may, except where otherwise provided in the preferred stock
designation, increase (but not above the total number of
authorized shares of the class) or decrease (but not below the
number of shares then outstanding);
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whether dividends, if any, will be cumulative or non-cumulative
and the dividend rate of the series;
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the dates at which dividends, if any, will be payable;
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the redemption rights and price or prices, if any, for shares of
the series;
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the terms and amounts of any sinking fund provided for the
purchase or redemption of shares of the series;
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the amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or
winding-up
of the
affairs of our company;
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whether the shares of the series will be convertible into shares
of any other class or series, or any other security, of our
company or any other corporation, and, if so, the specification
of the other class or series or other security, the conversion
price or prices or rate or rates, any rate adjustments, the date
or dates as of which the shares will be convertible and all
other terms and conditions upon which the conversion may be made;
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restrictions on the issuance of shares of the same series or of
any other class or series; and
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the voting rights, if any, of the holders of the series.
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For a description of our existing convertible perpetual
preferred stock, see “Description of Existing Convertible
Perpetual Preferred Stock.”
Anti-Takeover Effects of Certain Provisions of Our Second
Amended and Restated Certificate of Incorporation and By-laws
Certain provisions of our second amended and restated
certificate of incorporation and by-laws, which are summarized
in the following paragraphs, may have an anti-takeover effect
and may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in its best interest,
including those attempts that might result in a premium over the
market price for the shares held by stockholders.
Classified Board of Directors
Our second amended and restated certificate of incorporation
provides that our board of directors will be divided into three
classes of directors, with the classes to be as nearly equal in
number as possible. The members of each class serve for a
three-year term. As a result, approximately one-third of our
board of directors will be elected each year. The classification
of directors will have the effect of making it more difficult
for stockholders to change the composition of our board of
directors. Our second amended and restated certificate of
incorporation and the by-laws provide that the number of
directors will be fixed from time to time pursuant to a
resolution adopted by the board of directors, but must consist
of not less than seven or more than fifteen directors.
Conflicts of Interest
Delaware law permits corporations to adopt provisions renouncing
any interest or expectancy in certain opportunities that are
presented to the corporation or its officers, directors or
stockholders. Our second amended and restated certificate of
incorporation renounces any interest or expectancy that we have
in, or
8
right to be offered an opportunity to participate in, specified
business opportunities. Our second amended and restated
certificate of incorporation provides that none of the Original
Shareholders (including the Sponsor) or their affiliates or any
director who is not employed by us (including any non-employee
director who serves as one of our officers in both his director
and officer capacities) or his or her affiliates has any duty to
refrain from (i) engaging in a corporate opportunity in the
same or similar lines of business in which we or our affiliates
now engage or propose to engage or (ii) otherwise competing
with us. In addition, in the event that any Original Shareholder
(including the Sponsor) or any non-employee director acquires
knowledge of a potential transaction or other business
opportunity which may be a corporate opportunity for itself or
himself or its or his affiliates and for us or our affiliates,
such Original Shareholder or non-employee director will have no
duty to communicate or offer such transaction or business
opportunity to us and may take any such opportunity for
themselves or offer it to another person or entity. Our second
amended and restated certificate of incorporation does not
renounce our interest in any business opportunity that is
expressly offered to a non-employee director solely in his or
her capacity as a director or officer of Celanese Corporation.
No business opportunity offered to any non-employee director
will be deemed to be a potential corporate opportunity for us
unless we would be permitted to undertake the opportunity under
our second amended and restated certificate of incorporation, we
have sufficient financial resources to undertake the opportunity
and the opportunity would be in line with our business.
Removal of Directors
Our second amended and restated certificate of incorporation and
by-laws provide that (i) prior to the date on which the
Sponsor and its affiliates cease to beneficially own, in
aggregate, at least 50.1% in voting power of all outstanding
shares entitled to vote generally in the election of directors,
directors may be removed with or without cause upon the
affirmative vote of holders of at least a majority of the voting
power of all the then outstanding shares of stock entitled to
vote generally in the election of directors, voting together as
a single class and (ii) on and after the date the Sponsor
and its affiliates cease to beneficially own, in aggregate, at
least 50.1% in voting power of all outstanding shares entitled
to vote generally in the election of directors, directors may be
removed only for cause and only upon the affirmative vote of
holders of at least 80% of the voting power of all the then
outstanding shares of stock entitled to vote generally in the
election of directors, voting together as a single class. In
addition, our second amended and restated certificate of
incorporation also provides that any newly created directorships
and any vacancies on our board of directors will be filled only
by the affirmative vote of the majority of remaining directors;
provided that so long as affiliates of our Sponsor own at least
25% of the total voting power of our capital stock, such
positions can only be filled by our stockholders.
No Cumulative Voting
The Delaware General Corporation Law, or the DGCL, provides that
stockholders are not entitled to the right to cumulate votes in
the election of directors unless our second amended and restated
certificate of incorporation provides otherwise. Our second
amended and restated certificate of incorporation does not
expressly provide for cumulative voting.
Calling of Special Meetings of Stockholders
Our second amended and restated certificate of incorporation
provides that a special meeting of our stockholders may be
called at any time only by the chairman of the board of
directors, the board or a committee of the board of directors
which has been granted such authority by the board.
Stockholder Action by Written Consent
The DGCL permits stockholder action by written consent unless
otherwise provided by the second amended and restated
certificate of incorporation. Our second amended and restated
certificate of incorporation precludes stockholder action by
written consent after the date on which the Sponsor and its
affiliates ceases to beneficially own, in the aggregate, at
least 50.1% in voting power of all outstanding shares of our
stock entitled to vote generally in the election of directors.
9
Advance Notice Requirements for Stockholder Proposals and
Director Nominations
Our by-laws provide that stockholders seeking to nominate
candidates for election as directors or to bring business before
an annual meeting of stockholders must provide timely notice of
their proposal in writing to the corporate secretary.
Generally, to be timely, a stockholder’s notice must be
received at our principal executive offices not less than
90 days nor more than 120 days prior to the first
anniversary date on which the proxy materials for the previous
year’s annual meeting were first mailed. Our by-laws also
specify requirements as to the form and content of a
stockholder’s notice. These provisions, which do not apply
to the Sponsor and its affiliates, may impede stockholders’
ability to bring matters before an annual meeting of
stockholders or make nominations for directors at an annual
meeting of stockholders.
Supermajority Provisions
The DGCL provides generally that the affirmative vote of a
majority of the outstanding shares entitled to vote is required
to amend a corporation’s certificate of incorporation or
by-laws, unless the certificate of incorporation requires a
greater percentage. Our second amended and restated certificate
of incorporation provides that the following provisions in the
second amended and restated certificate of incorporation and
by-laws may be amended only by a vote of at least 80% of the
voting power of all of the outstanding shares of our stock
entitled to vote in the election of directors, voting together
as a single class:
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classified board (the election and term of our directors);
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the resignation and removal of directors;
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the provisions regarding stockholder action by written consent;
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the ability to call a special meeting of stockholders being
vested solely in our board of directors, a committee of our
board of directors (if duly authorized to call special
meetings), and the chairman of our board of directors;
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filling of vacancies on our board of directors and newly created
directorships;
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the advance notice requirements for stockholder proposals and
director nominations; and
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the amendment provision requiring that the above provisions be
amended only with an 80% supermajority vote.
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In addition, our second amended and restated certificate of
incorporation grants our board of directors the authority to
amend and repeal our by-laws without a stockholder vote in any
manner not inconsistent with the laws of the State of Delaware
or our second amended and restated certificate of incorporation.
Limitations on Liability and Indemnification of Officers and
Directors
The DGCL authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their
stockholders for monetary damages for breaches of
directors’ fiduciary duties. Our second amended and
restated certificate of incorporation includes a provision that
eliminates the personal liability of directors for monetary
damages for actions taken as a director, except for liability:
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for breach of duty of loyalty;
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for acts or omissions not in good faith or involving intentional
misconduct or knowing violation of law;
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under Section 174 of the DGCL (unlawful dividends or stock
repurchases and redemptions); or
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for transactions from which the director derived improper
personal benefit.
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Our second amended and restated certificate of incorporation and
by-laws provide that we must indemnify our directors and
officers to the fullest extent authorized by the DGCL. We are
also expressly authorized to advance certain expenses (including
attorneys’ fees and disbursements and court costs) and
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carry directors’ and officers’ insurance providing
indemnification for our directors, officers and certain
employees for some liabilities. We believe that these
indemnification provisions and insurance are useful to attract
and retain qualified directors and executive officers.
The limitation of liability and indemnification provisions in
our second amended and restated certificate of incorporation and
by-laws may discourage stockholders from bringing a lawsuit
against directors for breach of their fiduciary duty. These
provisions may also have the effect of reducing the likelihood
of derivative litigation against directors and officers, even
though such an action, if successful, might otherwise benefit us
and our stockholders. In addition, your investment may be
adversely affected to the extent we pay the costs of settlement
and damage awards against directors and officers pursuant to
these indemnification provisions.
There is currently no pending material litigation or proceeding
involving any of our directors, officers or employees for which
indemnification is sought.
Delaware Anti-takeover Statute
We are a Delaware corporation and are subject to
Section 203 of the DGCL. Subject to specified exceptions,
Section 203 prohibits a publicly held Delaware corporation
from engaging in a “business combination” with an
“interested stockholder” for a period of three years
after the date of the transaction in which the person became an
interested stockholder. “Business combinations”
include mergers, asset sales and other transactions resulting in
a financial benefit to the “interested stockholder.”
Subject to various exceptions, an “interested
stockholder” is a person who together with his or her
affiliates and associates, owns, or within three years did own,
15% or more of the corporation’s outstanding voting stock.
These restrictions generally prohibit or delay the
accomplishment of mergers or other takeover or change in control
attempts.
Transfer Agent and Registrar
Computershare Trust Company, N.A. (formerly Equiserve Trust
Company, N.A.) is the transfer agent and registrar for our
Series A common stock.
Listing
Our Series A common stock is listed on the New York Stock
Exchange under the symbol “CE”.
Authorized but Unissued Capital Stock
The DGCL does not require stockholder approval for any issuance
of authorized shares. However, the listing requirements of the
New York Stock Exchange, which would apply so long as our
Series A common stock is listed on the New York Stock
Exchange, require stockholder approval of certain issuances
equal to or exceeding 20% of the then-outstanding voting power
or then outstanding number of shares of common stock. These
additional shares may be used for a variety of corporate
purposes, including future public offerings, to raise additional
capital or to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved
common stock may be to enable our board of directors to issue
shares to persons friendly to current management, which issuance
could render more difficult or discourage an attempt to obtain
control of our company by means of a merger, tender offer, proxy
contest or otherwise, and thereby protect the continuity of our
management and possibly deprive the stockholders of
opportunities to sell their shares of common stock at prices
higher than prevailing market prices.
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DESCRIPTION OF EXISTING CONVERTIBLE PERPETUAL PREFERRED
STOCK
General
The existing preferred stock is a single series of preferred
stock consisting of 9,600,000 shares. The existing
preferred stock ranks junior to all of our and our
subsidiaries’ existing and future obligations and senior in
right of payment to all of our common stock now outstanding or
to be issued in the future. We are not entitled to issue any
class or series of our capital stock the terms of which provide
that such class or series will rank senior to the existing
preferred stock without the consent of the holders of at least
two-thirds of the outstanding shares of the existing preferred
stock.
Dividends
Holders of the shares of existing preferred stock are entitled
to receive, when, as and if declared by our board of directors,
out of funds legally available for payment, cumulative cash
dividends on each outstanding share of existing preferred stock
at the annual rate of 4.25% of the liquidation preference per
share. Dividends are payable quarterly in arrears on
February 1, May 1, August 1 and November 1
of each year, beginning on May 1, 2005. Accumulated unpaid
dividends cumulate at the annual rate of 4.25% and are payable
in the manner provided above.
For so long as the existing preferred stock remains outstanding,
(1) we will not declare, pay or set apart funds for the
payment of any dividend or other distribution with respect to
any junior stock or parity stock except for the special
Series B common stock dividends and (2) neither we,
nor any of our subsidiaries, will, subject to certain
exceptions, redeem, purchase or otherwise acquire for
consideration junior stock or parity stock through a sinking
fund or otherwise, in each case unless we have paid or set apart
funds for the payment of all accumulated and unpaid dividends
with respect to the shares of preferred stock and any parity
stock for all preceding dividend periods.
Conversion Rights
Holders of the existing preferred stock may, at any time,
convert shares of existing preferred stock into shares of our
Series A common stock at a conversion rate of
1.25 shares of Series A common stock per $25
liquidation preference of existing preferred stock, subject to
certain adjustments.
If a holder of shares of existing preferred stock exercises
conversion rights, upon delivery of the shares for conversion,
those shares will cease to cumulate dividends as of the end of
the day immediately preceding the date of conversion. Holders of
shares of existing preferred stock who convert their shares into
our Series A common stock will not be entitled to, nor will
the conversion rate be adjusted for, any accumulated and unpaid
dividends.
We will at all times reserve and keep available, free from
preemptive rights, for issuance upon the conversion of shares of
existing preferred stock a number of our authorized but unissued
shares of Series A common stock that will from time to time
be sufficient to permit the conversion of all outstanding shares
of existing preferred stock.
Make Whole Payment Upon the Occurrence of a Fundamental
Change
If the holder of the existing preferred stock elects to convert
its existing preferred stock upon the occurrence of a
fundamental change (a transaction or event that involves the
exchange, conversion or acquisition in connection with which 90%
or more of our share of Series A common stock are exchanged
for, converted into, acquired for or constitute solely the right
to receive, consideration that is not at least 90% shares of
common stock that is not traded on a national securities
exchange or approved for quotation thereof in an interdealer
quotation system of any registered United States national
securities exchange) that occurs prior to February 1, 2015,
in certain circumstances, the holder of the existing preferred
stock will be entitled to receive, in addition to a number of
shares of Series A common stock equal to the applicable
conversion rate, an additional number of shares of Series A
common stock. In no event will the total number of shares
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of Series A common stock issuable upon conversion exceed
1.5625 per $25 liquidation preference per share of
preferred stock, subject to adjustments in the same manner as
the conversion rate.
Adjustments to the Conversion Rate
The conversion rate is subject to adjustment from time to time
if any of the following events occur: the issuance of common
stock as a dividend, a distribution of our common stock, certain
subdivisions and combinations of our common stock, the issuance
to holders of our common stock of certain rights or warrants to
purchase common stock, certain dividends or distributions of
capital stock, evidences of indebtedness, other assets or cash
to holders of common stock, or under certain circumstances, a
payment we make in respect of a tender offer or exchange offer
for our common stock.
We may adopt a rights agreement following consummation of this
offering, pursuant to which certain rights would be issued with
respect to our shares of Series A common stock. In certain
circumstances, the holder of the existing preferred stock would
receive, upon conversion of its existing preferred stock, in
addition to the Series A common stock, the rights under any
such rights agreement (if adopted) or any other rights plan then
in effect.
Optional Redemption
We may not redeem any shares of existing preferred stock before
February 1, 2010. On or after February 1, 2010, we
will have the option to redeem some or all the shares of
existing preferred stock at a redemption price of 100% of the
liquidation preference, plus an amount equal to accumulated and
unpaid dividends to the redemption date, but only if the closing
sale price of our Series A common stock for 20 trading days
within a period of 30 consecutive trading days ending on
the trading day before the date we give the redemption notice
exceeds 130% of the conversion price in effect on each such day.
In addition, if on or after February 1, 2010, on any
quarterly dividend payment date, the total number of shares of
existing preferred stock outstanding is less than 15% of the
total number of shares of the existing preferred stock
outstanding at the time of this offering, we will have the
option to redeem the shares of outstanding existing preferred
stock, in whole but not in part, at a redemption price of 100%
of the liquidation preference, plus an amount equal to
accumulated and unpaid dividends to the redemption date. If full
cumulative dividends on the existing preferred stock have not
been paid, the existing preferred stock may not be redeemed and
we may not purchase or acquire any shares of existing preferred
stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of existing preferred
stock and any parity stock.
Designated Event
If a designated event occurs, each holder of shares of existing
preferred stock will have the right to require us, subject to
legally available funds, to redeem any or all of its shares at a
redemption price equal to 100% of the liquidation preference,
plus accumulated and unpaid dividends to, but excluding, the
date of redemption. We may choose to pay the redemption price in
cash, shares of Series A common stock, or a combination
thereof. If we elect to pay all or a portion of the redemption
price in shares of Series A common stock, the shares of
Series A common stock will be valued at a discount of 2.5%
below the average of the closing sale prices for the ten
consecutive trading days ending on the fifth trading day prior
to the redemption date. Our ability to redeem all or a portion
of the existing preferred stock for cash is subject to our
obligation to repay or repurchase any outstanding debt that may
be required to be repaid or repurchased in connection with a
designated event and to any contractual restrictions contained
in the terms of any indebtedness that we have at that time. If,
following a designated event, we are prohibited from paying the
redemption price of the existing preferred stock in cash under
the terms of our debt instruments, but are not prohibited under
applicable law from paying such redemption price in our shares
of Series A common stock, we will pay the redemption price
of the existing preferred stock in our shares of Series A
common stock. However, in no event will we be required to
deliver more than 240,000,000 shares of Series A
common stock in satisfaction of the redemption price (subject to
adjustment).
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Voting Rights
Unless otherwise determined by our board of directors, holders
of shares of existing preferred stock will not have any voting
rights except as described below, as provided in our second
amended and restated certificate of incorporation or as
otherwise required from time to time by law. Whenever
(1) dividends on any shares of the existing preferred stock
or any other class or series of stock ranking on a parity with
the existing preferred stock with respect to the payment of
dividends shall be in arrears for dividend periods, whether or
not consecutive, containing in the aggregate a number of days
equivalent to six calendar quarters or (2) we fail to pay
the redemption price on the date shares of existing preferred
stock are called for redemption (whether the redemption is
pursuant to the optional redemption provisions or the redemption
is in connection with a designated event) then, immediately
prior to the next annual meeting of shareholders, the total
number of directors constituting the entire board will
automatically be increased by two and in each case, the holders
of shares of existing preferred stock (voting separately as a
class with all other series of other preferred stock on parity
with the preferred stock upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the
election of such directors at the next annual meeting of
stockholders and each subsequent meeting until the redemption
price or all dividends accumulated on the preferred stock have
been fully paid or set aside for payment. Directors elected by
the holders of the existing preferred stock shall not be divided
into the classes of the board of directors and the term of
office of all directors elected by the holders of existing
preferred stock will terminate immediately upon the termination
of the right of the holders of existing preferred stock to vote
for directors and upon such termination the total number of
directors constituting the entire board will automatically be
reduced by two. Each holder of shares of the existing preferred
stock will have one vote for each share of existing preferred
stock held.
So long as any shares of the existing preferred stock remain
outstanding, we will not, without the consent of the holders of
at least two-thirds of the shares of existing preferred stock
outstanding at the time, voting separately as a class with all
other series of preferred stock upon which like voting rights
have been conferred and are exercisable issue or increase the
authorized amount of any class or series of stock ranking senior
to the outstanding preferred stock as to dividends or upon
liquidation. In addition, we will not amend, alter or repeal
provisions of our second amended and restated certificate of
incorporation or of the resolutions contained in the certificate
of designations, whether by merger, consolidation or otherwise,
so as to amend, alter or adversely affect any power, preference
or special right of the outstanding preferred stock or the
holders thereof without the affirmative vote of not less than
two-thirds of the issued and outstanding preferred stock;
provided, however, that any increase in the amount of the
authorized Series A common stock or authorized preferred
stock or the creation and issuance of other series of
Series A common stock or preferred stock ranking on a
parity with or junior to the existing preferred stock as to
dividends and upon liquidation will not be deemed to adversely
affect such powers, preference or special rights.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, the
holders of existing preferred stock will be entitled to receive
out of our assets available for distribution of an amount equal
to the liquidation preference per share of existing preferred
stock held by that holder, plus an amount equal to all
accumulated and unpaid dividends on those shares to the date of
that liquidation, dissolution, or winding up, before any
distribution is made on any junior stock, including our
Series A common stock, but after any distributions on any
of our indebtedness.
Listing
Our existing 4.25% convertible perpetual preferred stock is
listed on the New York Stock Exchange under the symbol
“CE
Pr”.
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DESCRIPTION OF OFFERED PREFERRED STOCK
General
The following description sets forth some general terms and
provisions of the preferred stock we may offer pursuant to this
prospectus. The number of shares and all of the relative rights,
preferences and limitations of the respective series of offered
preferred stock that the board of directors or the committee
establishes will be described in the applicable prospectus
supplement. The terms of particular series of offered preferred
stock may differ, among other things, in:
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designation;
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number of shares that constitute the series;
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dividend rate, or the method of calculating the dividend rate;
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dividend periods, or the method of calculating the dividend
periods;
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redemption provisions, including whether or not, on what terms
and at what prices the shares will be subject to redemption at
our option;
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voting rights;
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preferences and rights upon liquidation or winding up;
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•
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whether or not and on what terms the shares will be convertible
into or exchangeable for shares of any other class, series or
security of ours or any other corporation or any other property;
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•
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for preferred stock convertible into common stock, the number of
shares of common stock to be reserved in connection with, and
issued upon conversion of, the preferred stock;
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•
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whether depositary shares representing the offered preferred
stock will be offered and, if so, the fraction or multiple of a
share that each depositary share will represent; and
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•
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the other rights and privileges and any qualifications,
limitations or restrictions of those rights or privileges.
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The preferred stock, when issued, will be fully paid and
non-assessable. Unless the applicable prospectus supplement
provides otherwise, the preferred stock will have no preemptive
rights to subscribe for any additional securities which may be
issued by us in the future. The transfer agent and registrar for
the preferred stock and any depositary shares will be specified
in the applicable prospectus supplement.
We may elect to offer depositary shares represented by
depositary receipts. If we so elect, each depositary share will
represent a fractional interest in a share of preferred stock
with the amount of the fractional interest to be specified in
the applicable prospectus supplement. If we issue depositary
shares representing interests in shares of preferred stock,
those shares of preferred stock will be deposited with a
depositary.
The shares of any series of preferred stock underlying the
depositary shares will be deposited under a separate deposit
agreement between us and a bank or trust company having its
principal office in the United States and having a combined
capital and surplus of at least $50 million. The applicable
prospectus supplement will set forth the name and address of the
depositary. Subject to the terms of the deposit agreement, each
owner of a depositary share will have a fractional interest in
all the rights and preferences of the preferred stock underlying
the depositary share. Those rights include any dividend, voting,
redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts
issued under the deposit agreement. If you purchase fractional
interests in shares of the related series of preferred stock,
you will receive depositary receipts as described in the
applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to
issue temporary depositary receipts substantially identical to
the final depositary receipts although not in final form. The
holders of the temporary depositary receipts will be entitled to
the same rights as if they held the depositary receipts in final
form. Holders of the temporary depositary receipts can exchange
them for the final depositary receipts at our expense.
15
PLAN OF DISTRIBUTION
We and/or the selling stockholders, if applicable, may sell the
securities in any of three ways (or in any combination):
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•
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through underwriters or dealers;
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•
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directly to a limited number of purchasers or to a single
purchaser; or
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•
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through agents.
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The prospectus supplement will set forth the terms of the
offering of such securities, including
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•
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the name or names of any underwriters, dealers or agents and the
amounts of securities underwritten or purchased by each of
them, and
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•
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the public offering price of the securities and the proceeds to
us and/or the selling stockholders, if applicable, and any
discounts, commissions or concessions allowed or reallowed or
paid to dealers.
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Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time.
We and/or the selling stockholders, if applicable, may effect
the distribution of the securities from time to time in one or
more transactions either:
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•
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at a fixed price or at prices that may be changed;
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•
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at market prices prevailing at the time of sale;
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•
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at prices relating to such prevailing market prices; or
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•
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at negotiated prices.
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If underwriters are used in the sale of any securities, the
securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. The securities may be either offered to the public
through underwriting syndicates represented by managing
underwriters, or directly by underwriters. Generally, the
underwriters’ obligations to purchase the securities will
be subject to certain conditions precedent. The underwriters
will be obligated to purchase all of the securities if they
purchase any of the securities (other than any securities
purchased upon exercise of any over-allotment option).
We and/or the selling stockholders, if applicable, may sell the
securities through agents from time to time. The prospectus
supplement will name any agent involved in the offer or sale of
the securities and any commissions paid to them. Generally, any
agent will be acting on a best efforts basis for the period of
its appointment.
Any underwriters, broker-dealers and agents that participate in
the distribution of the securities may be deemed to be
“underwriters” as defined in the Securities Act. Any
commissions paid or any discounts or concessions allowed to any
such persons, and any profits they receive on resale of the
securities, may be deemed to be underwriting discounts and
commissions under the Securities Act. We will identify any
underwriters or agents and describe their compensation in a
prospectus supplement. Maximum compensation to any underwriters,
dealers or agents will not exceed 8% of the maximum aggregate
offering proceeds.
Underwriters or agents may purchase and sell the securities in
the open market. These transactions may include over-allotment,
stabilizing transactions, syndicate covering transactions and
penalty bids. Over-allotment involves sales in excess of the
offering size, which creates a short position. Stabilizing
transactions consist of bids or purchases for the purpose of
preventing or retarding a decline in the market price of the
securities and are permitted so long as the stabilizing bids do
not exceed a specified maximum. Syndicate covering transactions
involve the placing of any bid on behalf of the underwriting
syndicate or the effecting of any purchase to reduce a short
position created in connection with the offering. The
underwriters or agents also may impose a penalty bid, which
permits them to reclaim selling concessions allowed to syndicate
16
members or certain dealers if they repurchase the securities in
stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the
securities, which may be higher than the price that might
otherwise prevail in the open market. These activities, if
begun, may be discontinued at any time. These transactions may
be effected on any exchange on which the securities are traded,
in the
over-the
-counter
market or otherwise.
Our Series A common stock is listed on the New York Stock
Exchange under the symbol “CE”.
Agents and underwriters may be entitled to indemnification by us
and the selling stockholders against certain civil liabilities,
including liabilities under the Securities Act, or to
contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof.
Agents and underwriters may be customers of, engage in
transactions with, or perform services for us in the ordinary
course of business.
The specific terms of the
lock-up
provisions in
respect of any given offering will be described in the
applicable prospectus supplement.
VALIDITY OF THE SECURITIES
The validity of the securities to be sold hereunder will be
passed upon for us by Simpson Thacher & Bartlett LLP,
New York, New York or other counsel who is satisfactory to us. A
private investment fund comprised of selected partners of
Simpson Thacher & Bartlett LLP, members of their
families, related parties and others owns an interest
representing less than 1% of the capital commitments of funds
affiliated with our largest shareholder, The Blackstone Group.
EXPERTS
The consolidated balance sheets of Celanese Corporation and
subsidiaries as of December 31, 2005 and 2004, and the
related consolidated statements of operations,
shareholders’ equity (deficit), and cash flows for the year
ended December 31, 2005 and the nine-month period ended
December 31, 2004, and related financial statement
schedules, have been incorporated by reference in the
registration statement in reliance upon the reports of KPMG LLP,
independent registered public accounting firm incorporated by
reference herein, and upon the authority of said firm as experts
in accounting and auditing. The report of the independent
registered public accounting firm covering these consolidated
financial statements contains an explanatory paragraph that
states that as a result of the acquisition by a subsidiary of
Celanese Corporation of 84.3% of the outstanding stock of CAG in
a business combination effective April 1, 2004 (a
convenience date for the April 6, 2004 acquisition date),
the consolidated financial information for the periods after the
acquisition is presented on a different cost basis than that for
the periods before the acquisition and, therefore, is not
comparable.
The consolidated statements of operations, shareholders’
equity and cash flows of Celanese AG and subsidiaries for the
three-month period ended March 31, 2004 and the year ended
December 31, 2003, incorporated by reference in the
registration statement in reliance upon the report of KPMG
Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftsprüfungsgesellschaft, independent registered
public accounting firm, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and
auditing. The report of the independent registered public
accounting firm covering these consolidated financial statements
contains explanatory paragraphs that state that (a) CAG
changed from using the
last-in,
first-out, or
LIFO, method of determining cost of inventories at certain
locations to the
first-in,
first-out or
FIFO method and adopted Financial Accounting Standards Board
Interpretation No. 46 (Revised), “Consolidation of
Variable Interest Entities—an interpretation of ARB
No. 51,” effective December 31, 2003, and
(b) the independent registered public accounting firm also
has reported separately on the consolidated financial statements
of CAG for the year ended December 31, 2003 which were
presented separately using the euro as the reporting currency.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses payable in
connection with the distribution of the securities being
registered. All amounts are estimated.
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SEC registration fee
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(1
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)
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Printing and engraving expenses
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(2
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)
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Legal fees
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(2
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)
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Accounting fees
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(2
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)
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Miscellaneous expenses
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(2
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Total
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(2
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)
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(1)
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Deferred in reliance on Rule 456(b) and 457(v).
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(2)
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The amount of these expenses is not presently known.
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Item 15.
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Indemnification of Directors and Officers.
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As permitted by Section 102 of the Delaware General
Corporation Law, or the DGCL, our Second Amended and Restated
Certificate of Incorporation includes a provision that
eliminates the personal liability of our directors for monetary
damages for breach of fiduciary duty as a director.
Our Second Amended and Restated Certificate of Incorporation and
Amended and Restated
By-laws
also provide
that:
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•
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we must indemnify our directors and officers to the fullest
extent permitted by Delaware law;
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•
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we may advance expenses, as incurred, to our directors and
executive officers in connection with a legal proceeding to the
fullest extent permitted by Delaware Law; and
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•
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we may indemnify our other employees and agents to the same
extent that we indemnified our officers and directors, unless
otherwise determined by our board of directors.
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Pursuant to Section 145(a) of the DGCL, we may indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the
corporation) by reason of the fact that the person is or was a
director, officer, agent or employee of our company or is or was
serving at our request as a director, officer, agent, or
employee of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including
attorneys’ fees, judgment, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding. Pursuant to
Section 145(b) of the DGCL, the power to indemnify also
applies to actions brought by or in the right of the corporation
as well, but only to the extent of defense expenses (including
attorneys’ fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such
action or suit. Pursuant to Section 145(b), we shall not
indemnify any person in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to us
unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper. The power to indemnify under Sections 145(a) and
(b) of the DGCL applies (i) if such person is
successful on the merits or otherwise in defense of any action,
suit or proceeding, or (ii) if such person acted in good
faith and in a manner he reasonably believed to be in the best
interest, or not opposed to the best interest, of the
corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
II-1
Section 174 of the DGCL provides, among other things, that
a director, who willfully or negligently approves of an unlawful
payment of dividends or an unlawful stock purchase or
redemption, may be held liable for such actions. A director who
was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered in the books containing
the minutes of the meetings of the board of directors at the
time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
The indemnification provisions contained in our Second Amended
and Restated Certificate of Incorporation and Amended and
Restated By-laws are not exclusive of any other rights to which
a person may be entitled by law, agreement, vote of stockholders
or disinterested directors or otherwise. In addition, we will
maintain insurance on behalf of our directors and executive
officers insuring them against any liability asserted against
them in their capacities as directors or officers or arising out
of such status.
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Item 16.
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Exhibits and Financial Statement Schedules.
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A list of exhibits filed with the registration statement on
Form
S-3
is set
forth in the Exhibit Index and is incorporated into this
Item 16 by reference.
The undersigned Registrant hereby undertakes:
To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
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(ii)
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to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement; and
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(iii)
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to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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provided, however
, that paragraphs (i),
(ii) and (iii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be this initial
bona fide
offering thereof.
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-2
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
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(A)
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Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
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(B)
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Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
Registrant and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
Provided,
however
, that no statement made in a registration statement
or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
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That, for the purpose of determining liability of the Registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed
pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant;
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(iii)
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The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
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(iv)
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Any other communication that is an offer in the offering made by
the undersigned Registrant to the purchaser.
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That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the
II-3
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Celanese Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing a
Form
S-3
and has
duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York on May 9, 2006.
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Name: David N. Weidman
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Title: President and Chief Executive Officer
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We, the undersigned officers and directors of Celanese
Corporation, do hereby constitute and appoint Curtis S. Shaw and
John J. Gallagher III, and each of them acting alone, our
true and lawful attorneys and agents, to do any and all acts and
things in our name and on our behalf in our capacities as
directors and officers and to execute any and all instruments
for us and in our names in the capacities indicated below, which
said attorneys and agents may deem necessary or advisable to
enable said Registrant to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities
and Exchange Commission, in connection with this registration
statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including
post-effective amendments) hereto and we do hereby ratify and
confirm all that said attorneys and agents shall do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on May 9, 2006.
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Signature
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Title
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/s/ David N. Weidman
David
N. Weidman
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President, Chief Executive Officer (Principal Executive
Officer), Director
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/s/ John J. Gallagher III
John
J. Gallagher III
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Executive Vice President, Chief Financial Officer (Principal
Financial Officer)
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/s/ Steven M. Sterin
Steven
M. Sterin
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Vice President, Controller (Principal Accounting Officer)
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/s/ Chinh E. Chu
Chinh
E. Chu
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Director
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/s/ David F. Hoffmeister
David
F. Hoffmeister
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Director
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/s/ James E. Barlett
James
E. Barlett
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Director
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/s/ Benjamin J. Jenkins
Benjamin
J. Jenkins
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Director
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/s/ Anjan Mukherjee
Anjan
Mukherjee
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Director
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II-5
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Signature
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Title
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/s/ Paul H. O’Neill
Paul
H. O’Neill
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Director
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/s/ James A. Quella
James
A. Quella
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Director
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/s/ Daniel S. Sanders
Daniel
S. Sanders
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Director
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II-6
EXHIBIT INDEX
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Exhibit
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No.
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Description of Exhibit
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1
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.1
(a)
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Form of Underwriting Agreement
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4
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.1
(b)
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Form of certificate of Series A common stock
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4
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.2
(c)
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Form of certificate of existing Convertible Perpetual Preferred
Stock
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4
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.3
(d)
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Certificate of designations for existing Convertible Perpetual
Preferred Stock
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4
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.4
(a)
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Form of certificate of offered preferred stock
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4
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.5
(a)
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Form of certificate of designations for offered preferred stock
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4
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.6
(e)
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Third Amended and Restated Shareholders’ Agreement, dated
as of October 31, 2005, by and among Celanese Corporation,
Blackstone Capital Partners (Cayman) Ltd. I., Blackstone
Capital Partners (Cayman) Ltd. 2, Blackstone Capital
Partners (Cayman) Ltd. 3 and BA Capital investors
Sidecar Fund, L.P.
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4
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.7
(f)
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Amended and Restated Registration Rights Agreement, dated as of
January 26, 2005, 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
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4
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.8
(g)
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Amendment No. 1 to the Third Amended and Restated
Shareholders’ Agreement, dated November 14, 2005, by
and among Celanese Corporation, Blackstone Capital Partners
(Cayman) Ltd. 1, Blackstone Capital Partners (Cayman)
Ltd. 2, Blackstone Capital Partners (Cayman) Ltd. 3
and BA Capital Investors Sidecar Fund, L.P.
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4
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.9
(h)
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|
Amendment No. 2, dated March 30, 2006, to the Third
Amended and Restated Shareholders’ Agreement, dated as of
October 31, 2005, as amended, by and among Celanese
Corporation, Blackstone Capital Partners (Cayman) Ltd. 1,
Blackstone Capital Partners (Cayman) Ltd. 2, Blackstone
Capital Partners (Cayman) Ltd. 3 and BA Capital
Investors Sidecar Fund, L.P.
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|
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5
|
.1
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|
Form of Opinion of Simpson Thacher & Bartlett LLP
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|
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12
|
.1
(i)
|
|
Computation of ratio of earnings to fixed charges
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|
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23
|
.1
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|
Form of Consent of Simpson Thacher & Bartlett LLP
(included as part of its form of opinion filed as
Exhibit 5.1 hereto)
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23
|
.2
|
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Consent of Independent Registered Public Accounting Firm,
KPMG LLP
|
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23
|
.3
|
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Consent of Independent Registered Public Accounting Firm, KPMG
Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftsprüfungsgesellschaft
|
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24
|
.1
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|
Powers of Attorney (included on signature page)
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|
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(a)
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|
To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein.
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(b)
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Incorporated by reference to Exhibit No. 4.1 to
Amendment No. 6 to the Registration Statement on
Form
S-1
(File
No.
333-120187),
filed on January 19, 2005.
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|
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(c)
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Incorporated by reference to Exhibit No. 4.2 to
Amendment No. 5 to the Registration Statement on
Form
S-1
(File
No.
333-120187),
filed on January 13, 2005.
|
|
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(d)
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Incorporated by reference to Exhibit No. 3.2 to the
Current Report on
Form
8-K,
filed
January 28, 2005.
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(e)
|
|
Incorporated by reference to Exhibit No. 4.3 to
Amendment No. 2 to the Registration Statement on
Form
S-1
(File
No.
333-127902),
filed on November 1, 2005.
|
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(f)
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|
Incorporated by reference to Exhibit No. 10.2 to the
Current Report on
Form
8-K,
filed on
January 28, 2005.
|
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(g)
|
|
Incorporated by reference to Exhibit No. 99.1 to the
Current Report on
Form
8-K,
filed on
November 18, 2005.
|
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(h)
|
|
Incorporated by reference to Exhibit No. 4.6 to the
Annual Report on
Form
10-K,
filed
on March 31, 2006.
|
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(i)
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|
Incorporated by reference to Exhibit No. 12 to the
Annual Report on
Form
10-K,
filed
on March 31, 2006.
|
