As filed with the Securities and Exchange Commission on February 14, 2005
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CELANESE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
98-0420726
(I.R.S. employer identification number) |
1601 West LBJ Freeway
Dallas, TX 75234-6034
(Address, including zip code, and telephone number, including area code, of principal executive offices)
Celanese Corporation 2004 Stock Incentive Plan
(Full title of the plan)
Secretary
550 U.S. Highway 202/206
Bedminster, NJ 07921-1590
(908) 901-4500
(Name and address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Edward P. Tolley III, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
CALCULATION OF REGISTRATION FEE
|
||||||||
Title of Securities to
be Registered(1) |
Amount to be
Registered(2) |
Proposed
Maximum Offering Price Per Share(3) |
Proposed
Maximum Aggregate Offering Price(3) |
Amount of
Registration Fee(3) |
||||
---|---|---|---|---|---|---|---|---|
|
||||||||
Series A Common Stock, par value $.0001 per share | 14,636,683 shares | $16.00 | $234,186,928 | $27,563.80 | ||||
|
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of the Registration Statement on Form S-8 (the "Registration Statement") is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the "Securities Act") and the introductory note to Part I of the Registration Statement. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this Registration Statement as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the "Commission") by Celanese Corporation (the "Company") pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this registration statement:
All documents that the Company subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Section 102 of the Delaware General Corporation Law, or the DGCL, the Company's second amended and restated certificate of incorporation includes a provision that eliminates the personal liability of the Company's directors for monetary damages for breach of fiduciary duty as a director.
2
The Company's second amended and restated certificate of incorporation and bylaws also provide that:
Pursuant to Section 145(a) of the DGCL, the Company 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 the Company or is or was serving at the Company's 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), the Company 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 the Company 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.
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 the Company's second amended and restated certificate of incorporation and bylaws 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, the Company currently maintains insurance on behalf of our directors and executive officers insuring them against certain liabilities asserted against them in their capacities as directors or officers or arising out of such status. Such insurance would be available to the Company's directors and officers in accordance with its terms.
Item 7. Exemption from Registration Claimed.
Not applicable.
3
The following exhibits are filed as part of this registration statement:
Exhibit
Number |
Description of Exhibit
|
|
---|---|---|
4.1 | Second Amended and Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K (File No. 001-32410) (the "Form 8-K") filed with the SEC on January 28, 2005) | |
4.2 |
|
Form of Amended and Restated By-Laws of Registrant (incorporated by reference to Exhibit 3.2 to Amendment No. 5 to the Registrant's Registration Statement on Form S-1 (File No. 333-120187) (the "Form S-1") filed with the SEC on January 13, 2005) |
4.3 |
|
Form of certificate of Series A common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 6 to the Form S-1 filed with the SEC on January 19, 2005) |
4.4 |
|
Second Amended and Restated Shareholders' Agreement by and among Celanese Corporation, Blackstone Capital Partners (Cayman) Ltd. 1, Blackstone Capital Partners (Cayman) Ltd. 3 and BA Capital Investors Sidecar Fund, L.P. (incorporated by reference to Exhibit 10.1 to the Form 8-K) |
5.1 |
|
Opinion of Simpson Thacher & Bartlett LLP |
23.1 |
|
Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) |
23.2 |
|
Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft Wirtschaftsprüfungsgesellschaft |
24.1 |
|
Power of attorney (included in the signature page to this registration statement) |
99.1 |
|
Celanese Corporation 2004 Stock Incentive Plan (incorporated by reference to Exhibit 10.20 to Amendment No. 3 to the Form S-1 filed with the SEC on January 3, 2005) |
99.2 |
|
Form of Nonqualified Stock Option Agreement (for employees) |
99.3 |
|
Form of Nonqualified Stock Option Agreement (for non-employee directors) |
99.4 |
|
Form of Nonqualified Stock Option Agreement between Celanese Corporation and Blackstone Management Partners IV L.L.C. |
(a) The undersigned registrant hereby undertakes:
4
price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(b) The undersigned registrant hereby undertakes 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 Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement 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.
(c) 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 Act, 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 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 Act and will be governed by the final adjudication of such issue.
5
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on February 14, 2005.
CELANESE CORPORATION | |||
|
|
By: |
/s/ DAVID N. WEIDMAN |
Name: David N. Weidman Title: Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers and directors of Celanese Corporation, hereby severally constitute and appoint David N. Weidman and Corliss J. Nelson, and each of them acting alone, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933) and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
6
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 February 14, 2005.
Signature
|
Title
|
|
---|---|---|
|
|
|
/s/
DAVID N. WEIDMAN
David N. Weidman |
Chief Executive Officer (Principal Executive Officer), Director | |
/s/ CORLISS J. NELSON Corliss J. Nelson |
|
Chief Financial Officer (Principal Financial Officer, Principal Accounting Officer) |
/s/ CHINH E. CHU Chinh E. Chu |
|
Chairman of the Board of Directors |
/s/ JOHN M. BALLBACH John M. Ballbach |
|
Director |
/s/ JAMES BARLETT James Barlett |
|
Director |
/s/ BENJAMIN J. JENKINS Benjamin J. Jenkins |
|
Director |
/s/ WILLIAM H. JOYCE William H. Joyce |
|
Director |
/s/ ANJAN MUKHERJEE Anjan Mukherjee |
|
Director |
/s/ PAUL H. O'NEILL Paul H. O'Neill |
|
Director |
/s/ HANNS OSTMEIER Hanns Ostmeier |
|
Director |
/s/ JAMES A. QUELLA James A. Quella |
|
Director |
/s/ DANIEL S. SANDERS Daniel S. Sanders |
|
Director |
7
Exhibit
Number |
Document Description
|
|
---|---|---|
4.1 |
|
Second Amended and Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K (File No. 001-32410) (the "Form 8-K") filed with the SEC on January 28, 2005) |
4.2 |
|
Form of Amended and Restated By-Laws of Registrant (incorporated by reference to Exhibit 3.2 to Amendment No. 5 to the Registrant's Registration Statement on Form S-1 (File No. 333-120187) (the "Form S-1") filed with the SEC on January 13, 2005) |
4.3 |
|
Form of certificate of Series A common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 6 to the Form S-1 filed with the SEC on January 19, 2005) |
4.4 |
|
Second Amended and Restate Shareholders' Agreement by and among Celanese Corporation, Blackstone Capital Partners (Cayman) Ltd. 1, Blackstone Capital Partners (Cayman) Ltd. 3 and BA Capital Investors Sidecar Fund, L.P. (incorporated by reference to Exhibit 10.1 to the Form 8-K) |
5.1 |
|
Opinion of Simpson Thacher & Bartlett LLP |
10.1 |
|
Celanese Corporation 2004 Stock Incentive Plan (incorporated by reference to Exhibit 10.20 to Amendment No. 3 to the Form S-1 filed with the SEC on January 3, 2005) |
23.1 |
|
Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) |
23.2 |
|
Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft Wirtschaftsprüfungsgesellschaft |
24.1 |
|
Power of attorney (included in the signature page to this registration statement) |
99.1 |
|
Celanese Corporation 2004 Stock Incentive Plan (incorporated by reference to Exhibit 10.20 to Amendment No. 3 to the Form S-1 filed with the SEC on January 3, 2005) |
99.2 |
|
Form of Nonqualified Stock Option Agreement (for employees) |
99.3 |
|
Form of Nonqualified Stock Option Agreement (for non-employee directors) |
99.4 |
|
Form of Nonqualified Stock Option Agreement between Celanese Corporation and Blackstone Management Partners IV L.L.C. |
8
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
February 11, 2005
Celanese
Corporation
1601 West LBJ Freeway
Dallas, TX 75234-6034
Ladies and Gentlemen:
We have acted as counsel to Celanese Corporation, a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, relating to the issuance by the Company of an aggregate of 14,636,683 shares (the "Shares") of Common Stock, par value $.0001 per share (the "Common Stock"), of the Company pursuant to the Celanese Corporation 2004 Stock Incentive Plan (the "Plan").
We have examined the Registration Statement, the Plan and a form of the share certificate of the Common Stock, which has been incorporated by reference in the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that, upon issuance and delivery in accordance with the Plan, the Shares will be validly issued, fully paid and nonassessable.
We do not express any opinion herein concerning any law other than the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing).
We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement.
Very truly yours, | |||
|
|
By: |
/s/ SIMPSON THACHER & BARTLETT LLP SIMPSON THACHER & BARTLETT LLP |
Exhibit 23.2
[Letterhead of KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft Wirtschaftsprüfungsgesellschaft]
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Celanese Corporation:
The Supervisory Board and Board of Management
Celanese AG:
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the Celanese Corporation 2004 Stock Incentive Plan of our report dated August 31, 2004, except for paragraph one of Note 28 which is as of October 6, 2004, paragraph two of Note 28, which is as of October 26, 2004, and paragraph three of Note 28, which is as of December 31, 2004, with respect to the consolidated financial statements and financial statement schedule of Celanese AG included in the Prospectus (No. 333-120187) dated January 20, 2005 filed with the Securities and Exchange Commission.
Our report dated August 31, 2004, except for paragraph one of Note 28 which is as of October 6, 2004, paragraph two of Note 28 which is as of October 26, 2004 and paragraph three of Note 28 which is as of December 31, 2004, contains explanatory paragraphs that state that (a) Celanese 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 as discussed in Note 3 to the consolidated financial statements, (b) Celanese adopted Statement of Financial Accounting Standards (SFAS) No. 143, Accounting for Asset Retirement Obligations, effective January 1, 2003, adopted Financial Accounting Standards Board Interpretation No. 46 (Revised), Consolidation of Variable Interest Entities an interpretation of ARB No. 51, effective December 31, 2003, adopted SFAS No. 142, Goodwill and Other Intangible Assets, effective January 1, 2002, early adopted SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities, effective October 1, 2002, and changed the actuarial measurement date for its Canadian and U.S. pension and other postretirement benefit plans in 2003 and 2002, respectively, and (c) we also have reported separately on the consolidated financial statements of Celanese for the same periods, prior to the change from the LIFO to the FIFO method of determining cost of inventories. Those consolidated financial statements were presented separately using the U.S. dollar and the euro as the reporting currency.
/s/ KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft Wirtschaftsprüfungsgesellschaft
Frankfurt am Main
February 9, 2005
Exhibit 99.2
[Form of Nonqualified Stock Option Agreement]
CELANESE CORPORATION
2004 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, is made effective as of ________ , 2005 (the Date of Grant ), between Celanese Corporation (the Company ) and the individual named as a participant on the signature page hereto (the Participant ).
R E C I T A L S :
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS, the Committee has determined that it would be in the best interests of the Company and its stockholders to grant the Options provided for herein to the Participant pursuant to the Plan and the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
2
3
4
5
6
7
8
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
|
CELANESE CORPORATION |
|
|
|
|
|
|
|
|
By: |
|
|
Its |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Participant |
9
Schedule A
The number of Shares subject to each Option is set forth below:
Time Option:
Tier I EBITDA Performance Option:
Tier I FCF Performance Option:
Tier II EBITDA Performance Option:
Tier II FCF Performance Option:
10
Schedule B
Performance Targets
Year-End |
|
Tier I EBITDA Target |
|
Tier I FCF Target* |
|
Tier II EBITDA Target |
|
Tier II FCF Target* |
|
December 31, 2005 |
|
$865 million |
|
|
|
$900 million |
|
|
|
December 31, 2006 |
|
$975 million |
|
|
|
$1.075 million |
|
|
|
December 31, 2007 |
|
$975 million |
|
|
|
$1.075 million |
|
|
|
December 31, 2008 |
|
$825 million |
|
|
|
$925 million |
|
|
|
* To be established annually by the Board, no later than 90 days following the beginning of such year.
The Performance Targets shall be adjusted by the Committee, to the extent that the Committee deems equitable in its sole discretion, upon acquisitions, divestitures, to reflect changes in the business and in other appropriate circumstances.
11
Exhibit 99.3
[Form of Nonqualified Stock Option Agreement]
CELANESE CORPORATION
2004 STOCK INCENTIVE PLAN
NONQUALIFIED
STOCK OPTION AGREEMENT
(Non-Employee Director)
THIS AGREEMENT, is made effective as of ______ __, 2005 (the Date of Grant), between Celanese Corporation (the Company) and the individual named as a participant on the signature page hereto (the Participant).
R E C I T A L S :
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS, the Committee has determined that it would be in the best interests of the Company and its stockholders to grant the Option provided for herein to the Participant pursuant to the Plan and the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
2
3
4
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
|
CELANESE CORPORATION |
|
|
|
|
|
|
|
By |
|
|
|
Its |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Participant |
|
5
Exhibit 99.4
[Form of Nonqualified Stock Option Agreement]
CELANESE CORPORATION
2004 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, is made effective as of ______ __, 2005 (the Date of Grant), between Celanese Corporation (the Company) and Blackstone Management Partners IV L.L.C. (the Participant) in consideration for the services of certain individuals designated by the Participant as a director of the Company.
R E C I T A L S :
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS, the Committee has determined that it would be in the best interests of the Company and its stockholders to grant the Option provided for herein to the Participant pursuant to the Plan and the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
2
3
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
|
CELANESE CORPORATION |
|
|
|
|
|
|
|
|
|
|
|
By |
|
|
|
Its |
|
|
|
|
|
|
|
|
|
|
|
BLACKSTONE MANAGEMENT PARTNERS IV L.L.C. |
||
|
|
||
|
|
||
|
|
|
|
|
By |
|
|
|
Its |
|
|
4