Exhibit (a)(1)(i)
Offer to
Purchase for Cash
by
CELANESE
CORPORATION
Through
Its Wholly Owned Subsidiary
CELANESE
INTERNATIONAL HOLDINGS LUXEMBOURG S.À R.L.
of
Up to
11,279,243 Shares of Its Common Stock
At a Purchase Price
Not Greater than $30.50 per Share
Nor Less than $28.00 per Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON TUESDAY, APRIL 3,
2007, UNLESS THE OFFER IS EXTENDED.
Celanese Corporation, a Delaware corporation (the
Company), through its wholly owned subsidiary,
Celanese International Holdings Luxembourg S.à r.l., a
Luxembourg limited liability company (CIH and
together with the Company, we or us),
hereby invites its stockholders to tender up to
11,279,243 shares of its Series A Common Stock, par
value $0.0001 per share (the Common Stock), for
purchase by us at a price not greater than $30.50 nor less than
$28.00 per share, net to the seller in cash, less any
applicable withholding taxes and without interest, upon the
terms and subject to the conditions described in this Offer to
Purchase and in the related Letter of Transmittal (which
together, as they may be amended or supplemented from time to
time, constitute the Offer).
The Offer has been approved by the Board of Directors of the
Company and the Board of Managers of CIH. CIH will purchase the
shares accepted for payment using its own funds.
WHILE FOR
SIMPLICITY WE USE THE TERMS WE AND US
THROUGHOUT THIS DOCUMENT, INCLUDING IN SOME INSTANCES WITH
RESPECT TO THE PURCHASE AND PAYMENT FOR SHARES, YOU SHOULD
UNDERSTAND THAT CIH WILL BE PAYING FOR AND ACQUIRING THE
SHARES THAT ARE TENDERED IN THE OFFER.
Upon the terms and subject to the conditions of the Offer, we
will determine a single per share price that we will pay for
shares properly tendered and not properly withdrawn from the
Offer, taking into account the total number of shares tendered
and the prices specified by tendering stockholders. We will
select the lowest purchase price that will allow us to purchase
11,279,243 shares or such lesser number of shares as are
properly tendered and not properly withdrawn, at prices not
greater than $30.50 nor less than $28.00 per share, net to
the seller in cash, less any applicable withholding taxes and
without interest (such purchase price, the Final Purchase
Price). All shares acquired in the Offer will be acquired
at the same purchase price, including those shares tendered at a
price lower than the Final Purchase Price. Only shares properly
tendered at prices at or below the Final Purchase Price selected
by us, and not properly withdrawn, will be purchased. However,
because of the odd lot priority, proration and
conditional tender provisions described in this Offer to
Purchase, we may not purchase all of the shares tendered at or
below the Final Purchase Price if more than the number of shares
we seek are properly tendered and not properly withdrawn. Shares
not purchased in the Offer will be returned to the tendering
stockholders at our expense promptly after the expiration of the
Offer. We reserve the right, in our sole discretion, to purchase
more than 11,279,243 shares in the Offer, and to increase
the maximum aggregate purchase price, subject to applicable law.
In accordance with the rules of the Securities and Exchange
Commission (the SEC), we may purchase an additional
amount of shares not to exceed 2% of the outstanding shares
(approximately 3,192,861 shares as of March 2,
2007) without amending or extending the Offer. See
Section 1.
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF
SHARES BEING TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO
OTHER CONDITIONS. SEE SECTION 7.
The Common Stock is traded on the New York Stock Exchange under
the symbol CE. On March 2, 2007, the last full
trading day prior to the announcement of the Offer, the last
reported sale price of our shares of Common Stock was $28.33 per
share.
Stockholders are urged to obtain current market
quotations for the shares of Common Stock before deciding
whether and at what purchase price or purchase prices to tender
their shares of Common Stock. See Section 8.
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THE COMPANYS BOARD OF DIRECTORS AND CIHS BOARD OF
MANAGERS HAVE APPROVED THE OFFER. HOWEVER, NONE OF THE COMPANY,
CIH, ANY MEMBER OF THE BOARD OF DIRECTORS OF THE COMPANY OR OF
THE BOARD OF MANAGERS OF CIH, MERRILL LYNCH & CO. AND
DEUTSCHE BANK SECURITIES INC., THE DEALER MANAGERS FOR THIS
OFFER (COLLECTIVELY, THE DEALER MANAGERS),
GEORGESON, THE INFORMATION AGENT FOR THIS OFFER (THE
INFORMATION AGENT), OR COMPUTERSHARE
TRUST COMPANY, N.A., THE DEPOSITARY FOR THIS OFFER (THE
DEPOSITARY), MAKES ANY RECOMMENDATION AS TO WHETHER
YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES OR
AS TO THE PURCHASE PRICE OR PURCHASE PRICES AT WHICH YOU MAY
CHOOSE TO TENDER YOUR SHARES. NEITHER THE COMPANY NOR CIH, NOR
ANY MEMBER OF THE BOARD OF DIRECTORS OF THE COMPANY OR THE BOARD
OF MANAGERS OF CIH, THE DEALER MANAGERS, THE INFORMATION AGENT
OR THE DEPOSITARY HAS AUTHORIZED ANY PERSON TO MAKE ANY
RECOMMENDATION WITH RESPECT TO THE OFFER. YOU MUST MAKE YOUR OWN
DECISION AS TO WHETHER TO TENDER YOUR SHARES AND, IF SO,
HOW MANY SHARES TO TENDER AND THE PURCHASE PRICE OR
PURCHASE PRICES AT WHICH YOU WILL TENDER THEM. IN DOING SO, YOU
SHOULD CONSULT YOUR OWN INVESTMENT AND TAX ADVISORS, AND READ
CAREFULLY AND EVALUATE THE INFORMATION IN THIS OFFER TO PURCHASE
AND IN THE RELATED LETTER OF TRANSMITTAL, INCLUDING OUR REASONS
FOR MAKING THE OFFER. SEE SECTION 2.
The Companys directors and executive officers and
CIHs managers have advised us that they do not intend to
tender their shares in the Offer. See Section 11. However,
we have agreed to purchase up to 1,835,511 shares (which
number of shares purchased may be proportionately increased or
decreased if the number of shares purchased in the Offer is
increased or decreased, respectively) at the Final Purchase
Price from Blackstone Capital Partners (Cayman) Ltd. 1,
Blackstone Capital Partners (Cayman) Ltd. 2 and Blackstone
Capital Partners (Cayman) Ltd. 3 (collectively,
Blackstone), on the eleventh business day after the
expiration of the Offer. Blackstone holds approximately 14% of
the Common Stock and will not be tendering any shares in the
Offer. Blackstone representatives occupy four out of the eleven
seats on the Board of Directors of the Company and abstained
from voting to approve this Offer. See Section 11.
Questions and requests for assistance may be directed to the
Information Agent or to the Dealer Managers at their respective
addresses and telephone numbers set forth on the back cover of
this Offer to Purchase. Requests for additional copies of this
Offer to Purchase, the Letter of Transmittal or the Notice of
Guaranteed Delivery should be directed to the Information Agent.
The Dealer Managers for the Offer are:
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Merrill
Lynch & Co.
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Deutsche
Bank Securities
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March 6,
2007
ii
IMPORTANT
If you want to tender all or part of your shares, you must do
one of the following before the Offer expires at 5:00 p.m.,
New York City time, on Tuesday, April 3, 2007 (unless the
Offer is extended):
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If your shares are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee, contact the
nominee and request that the nominee tender your shares for you;
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If you hold certificates registered in your own name, complete
and sign a Letter of Transmittal according to its instructions,
and deliver it, together with any required signature guarantees,
the certificates for your shares and any other documents
required by the Letter of Transmittal, to Computershare Trust
Company, N.A., the Depositary for the Offer;
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If you are a participant in the Celanese Americas Retirement
Savings Plan (the 401(k) Plan) and you wish to
tender any of the shares allocable to the units in your 401(k)
Plan, follow the instructions described in Section 3 and
the separate materials related to the 401(k) Plan enclosed with
this Offer to Purchase;
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If you are an institution participating in The Depository Trust
Company, which we call the Book-Entry Transfer
Facility in this Offer to Purchase, tender your shares
according to the procedure for book-entry transfer described in
Section 3; or
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If you are a holder of vested options, you may exercise your
vested options and tender any of the shares issued upon
exercise. You must exercise your options sufficiently in advance
of the expiration date to receive your shares in order to tender.
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If you want to tender your shares but (a) the certificates
for your shares are not immediately available or cannot be
delivered to the Depositary by the expiration of the Offer,
(b) you cannot comply with the procedure for book-entry
transfer by the expiration of the Offer, or (c) your other
required documents cannot be delivered to the Depositary by the
expiration of the Offer, you can still tender your shares if you
comply with the guaranteed delivery procedures described in
Section 3.
If you wish to maximize the chance that your shares will be
purchased in the Offer, you should check the box in the section
of the Letter of Transmittal captioned
Shares Tendered At Price Determined Under The
Offer. If you agree to accept the purchase price
determined in the Offer, your shares will be deemed to be
tendered at the minimum price of $28.00 per share for
purposes of determining the Final Purchase Price.
You should
understand that this election may effectively lower the Final
Purchase Price and could result in your shares being purchased
at the minimum price of $28.00 per share. The lower end of
the price range for the Offer is below the closing market price
for the shares on March 2, 2007, the last full trading day
prior to announcement of the Offer, at which time the closing
market price on the New York Stock Exchange was $28.33.
We are not making the Offer to, and will not accept any tendered
shares from, stockholders in any jurisdiction where it would be
illegal to do so. However, we may, at our discretion, take any
actions necessary for us to make the Offer to stockholders in
any such jurisdiction.
You may contact the Information Agent, the Dealer Managers or
your broker, bank or other nominee for assistance. The contact
information for the Information Agent and the Dealer Managers is
set forth on the back cover of this Offer to Purchase.
WE HAVE NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR
TO MAKE ANY REPRESENTATION IN CONNECTION WITH THE OFFER OTHER
THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE RELATED
LETTER OF TRANSMITTAL. YOU SHOULD NOT RELY ON ANY
RECOMMENDATION, OR ANY SUCH REPRESENTATION OR INFORMATION, AS
HAVING BEEN AUTHORIZED BY THE COMPANY, CIH, ANY MEMBER OF OUR
BOARD OF DIRECTORS OR OF THE BOARD OF MANAGERS OF CIH, THE
DEALER MANAGERS, THE INFORMATION AGENT OR THE DEPOSITARY.
iii
TABLE OF
CONTENTS
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iv
SUMMARY
TERM SHEET
We are providing this summary for your convenience. It
highlights certain material information in this Offer to
Purchase, but you should realize that it does not describe all
of the details of the Offer to the same extent described
elsewhere in this Offer to Purchase. We urge you to read the
entire Offer to Purchase and the related Letter of Transmittal
because they contain the full details of the Offer. We have
included references to the sections of this Offer to Purchase
where you will find a more complete discussion.
Who is
offering to purchase my shares?
The Company, through its wholly owned subsidiary CIH, is
offering to purchase up to 11,279,243 shares of the
Companys Common Stock. See Section 1.
What is
the purpose of the Offer?
The Company believes that the Offer is a prudent use of its
financial resources, given its business profile, its assets and
recent market prices for shares of the Common Stock. See
Section 2.
The Board of Directors believes that the modified Dutch
Auction tender offer set forth in this Offer to Purchase
represents a mechanism to provide all of the Companys
stockholders with the opportunity to tender all or a portion of
their shares and, thereby, receive a return of some or all of
their investment if they so elect. The Offer provides
stockholders (particularly those who, because of the size of
their shareholdings, might not be able to sell their shares
without potential disruption to the share price) with an
opportunity to obtain liquidity with respect to all or a portion
of their shares without potential disruption to the share price.
In addition, if we complete the Offer, stockholders who do not
participate in the Offer will automatically increase their
relative percentage ownership interest in the Company and its
future operations.
The Offer also provides stockholders with an efficient way to
sell their shares without incurring brokers fees or
commissions associated with open market sales. Furthermore, odd
lot holders who hold shares registered in their names and tender
their shares directly to the Depositary and whose shares are
purchased in the Offer will avoid any applicable odd lot
discounts that might otherwise be payable on sales of their
shares. See Sections 1 and 2.
With the shares received in this Offer, the Company will
reorganize the corporate organizational structure of certain of
its subsidiaries to achieve more integrated global operations
and to provide various financial, operational and tax
efficiencies (the Reorganization). As part of the
Reorganization, CIH will exchange the shares purchased in the
Offer for a controlling interest in one or more of the
Companys wholly owned subsidiaries. The Company may issue
additional shares of Common Stock to CIH to effectuate the
Reorganization. Because all the shares issued as part of the
Reorganization are held by wholly owned subsidiaries of the
Company, the shares will not be considered outstanding on the
Companys consolidated financial statements or for voting
purposes. The Company is and will continue to be the ultimate
beneficial owner of all subsidiaries involved in the internal
Reorganization. See Section 2.
This Offer is part of a series of transactions whereby the
Company will effect a restructuring (the
Restructuring). In addition to this Offer and the
Reorganization as described herein, the Restructuring is
expected to include the following components:
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The refinancing of the Companys existing credit agreements
and entry by Celanese US Holdings LLC into new senior credit
facilities consisting of a $600 million revolving credit
facility with a term of six years, a $228 million
credit-linked revolving facility with a term of seven years and
a term loan with a dollar denominated tranche of
$2,280 million and a Euro tranche of
400 million, in each case with a term of seven
years; and
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The tender offer and consent solicitation by Crystal US Holdings
3 L.L.C. and Crystal US Sub 3 Corp. to purchase for cash any and
all of their outstanding 10% Series A Senior Discount Notes
due 2014 and
10
1
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2
%
Series B Senior Discount Notes Due 2014 and the tender
offer by Celanese US Holdings LLC to purchase for cash any and
off of its outstanding U.S. Dollar-denominated
9
5
/
8
% Senior
Subordinated Notes due 2014 and Euro-denominated
10
3
/
8
% Senior
Subordinated Notes due 2014 and to eliminate substantially all
covenants from the related indentures.
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1
Will any
directors or executive officers of the Company or managers of
CIH tender their shares in the Offer?
The Companys directors and executive officers and
CIHs managers have advised us that they do not intend to
tender their shares in the Offer. See Section 11. However,
we have agreed to purchase up to 1,835,511 shares (which
number of shares purchased may be proportionately increased or
decreased if the number of shares purchased in the Offer is
increased or decreased, respectively) at the Final Purchase
Price from Blackstone, on the eleventh business day after the
expiration of the Offer. Blackstone holds approximately 14% of
the Common Stock and will not be tendering any shares in the
Offer. Blackstone representatives occupy four out of the eleven
seats on the Board of Directors of the Company and abstained
from voting to approve this Offer. See Section 11.
How many
shares will we purchase in the Offer?
We will purchase up to 11,279,243 shares in the Offer
(representing approximately 7% of the Common Stock) or such
lesser number of shares as are properly tendered and not
properly withdrawn. If more than 11,279,243 shares are
tendered, we will purchase all shares tendered at or below the
Final Purchase Price on a pro rata basis, except for odd
lots (lots held by beneficial or record owners of less
than 100 shares), which we will purchase on a priority
basis. We expressly reserve the right to purchase additional
shares in the Offer, subject to applicable law. See
Section 1. The Offer is not conditioned on any minimum
number of shares being tendered but is subject to other
conditions. See Section 7.
In accordance with the rules of the SEC, we may purchase an
additional amount of shares not to exceed 2% of the outstanding
shares (approximately 3,192,861 shares as of March 2,
2007) without amending or extending the Offer.
Will
shares repurchased from Blackstone affect the number of shares
purchased in the Offer?
No. The shares repurchased from Blackstone do not affect the
number of shares purchased in the Offer.
What will
the purchase price for the shares be and what will be the form
of payment?
We are conducting the Offer through a procedure commonly called
a modified Dutch Auction. This procedure allows you
to select the price, within a price range specified by us, at
which you are willing to sell your shares. The price range for
the Offer is $28.00 to $30.50 per share. We will select the
lowest purchase price within that range that will allow us to
buy up to 11,279,243 shares, or, if fewer shares are
properly tendered, all shares that are properly tendered and not
properly withdrawn. We will purchase all shares at the same
purchase price, even if you have selected a lower purchase
price, but we will not purchase any shares tendered at a price
above the Final Purchase Price selected by us. If you wish to
maximize the chance that we will purchase your shares, you
should check the box in the section entitled
Shares Tendered At Price Determined Under The
Offer in the section captioned Price (In Dollars)
Per Share At Which Shares Are Being Tendered in the
Letter of Transmittal indicating that you will accept the Final
Purchase Price selected by us. If you agree to accept the
purchase price determined in the Offer, your shares will be
deemed to be tendered at the minimum price of $28.00 per
share for purposes of determining the Final Purchase Price. You
should understand that this election may effectively lower the
Final Purchase Price and could result in your shares being
purchased at the minimum price of $28.00 per share. If we
purchase your shares in the Offer, we will pay you the Final
Purchase Price in cash, less any applicable withholding taxes
and without interest, promptly after the expiration of the
Offer. Under no circumstances will we pay interest on the Final
Purchase Price, even if there is a delay in making payment. See
the Introduction and Section 1.
How will
we pay for the shares?
Assuming we purchase 11,279,243 shares in the Offer and the
additional 1,835,511 shares from Blackstone at the maximum
specified purchase price of $30.50 per share, approximately
$400 million will be required to purchase such shares. We
intend to use working capital, including cash on hand, to
purchase shares in the Offer and to pay all fees and expenses
applicable to the Offer. See Section 9.
How long
do I have to tender my shares?
You may tender your shares until the Offer expires. The Offer
will expire on Tuesday, April 3, 2007, at 5:00 p.m.,
New York City time, unless we extend the Offer. See
Section 1. We may choose to extend the Offer at any time
and for any reason. We cannot assure you, however, that we will
extend the Offer or, if we extend it, for how long. See
Section 1 and Section 14. If a
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broker, dealer, commercial bank, trust company or other nominee
holds your shares, it may have an earlier deadline for accepting
the Offer. We urge you to contact the broker, dealer, commercial
bank, trust company or other nominee that holds your shares to
find out its deadline.
Can the
Offer be extended, amended or terminated, and if so, under what
circumstances?
Yes. We can extend or amend the Offer in our sole discretion. If
we extend the Offer, we will delay the acceptance of any shares
that have been tendered. See Section 14. In addition, we
can terminate the Offer under certain circumstances. See
Section 7.
How will
I be notified if you extend the Offer or amend the terms of the
Offer?
If we extend the Offer, we will issue a press release not later
than 9:00 a.m., New York City time, on the first business
day after the previously scheduled expiration date of the Offer.
We will announce any amendment to the Offer by making a public
announcement of the amendment. See Section 14.
Are there
any conditions to the Offer?
Yes. Our obligation to accept for payment and pay for your
tendered shares depends upon a number of conditions that must be
satisfied or waived on or prior to the expiration of the Offer,
including:
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No legal action shall have been threatened, pending or taken
that might adversely affect the Offer.
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No general suspension of trading in, or general limitation on
prices for, or trading in, securities on any national securities
exchange or in the
over-the-counter
markets in the United States or the declaration of a banking
moratorium or any suspension of payments in respect of banks in
the United States shall have occurred.
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No decrease of more than 10% in the market price for the Common
Stock or in the Dow Jones Industrial Average, the Nasdaq Global
Market Composite Index or Standard & Poors
Composite Index of 500 Industrial Companies measured from the
close of trading on March 2, 2007, the last trading day
prior to announcement of the Offer, shall have occurred.
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No commencement of a war, armed hostilities or other similar
national or international calamity directly or indirectly
involving the United States shall have occurred on or after
March 6, 2007 nor shall any material escalation of any war
or armed hostilities which had commenced prior to March 6,
2007 have occurred.
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No changes in the general political, market, economic or
financial conditions, domestically or internationally, that are
reasonably likely to materially and adversely affect our
business or the trading in the shares shall have occurred.
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No person shall have proposed, announced or made a tender or
exchange offer for shares of the Common Stock (other than this
Offer), merger, business combination or other similar
transaction involving us.
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No person (including certain groups) shall have acquired, or
proposed to acquire, beneficial ownership of more than 5% of the
Companys outstanding shares (other than as publicly
disclosed in a filing with the Securities and Exchange
Commission (the SEC) on or before March 2,
2007). In addition, no new group shall have been formed that
beneficially owns more than 5% of the Companys outstanding
shares.
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No person (including a group) that has publicly disclosed in a
filing with the SEC on or before March 2, 2007 that it has
beneficial ownership of more than 5% of the outstanding shares
shall have acquired, or publicly announced its proposal to
acquire, beneficial ownership of an additional 2% or more of the
outstanding shares.
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No person shall have filed a Notification and Report Form under
the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, or made a public
announcement reflecting an intent to acquire the Company or any
of its subsidiaries or any of its assets or securities.
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No material adverse change in our business, condition (financial
or otherwise), assets, income, operations or prospects, shall
have occurred during the Offer period.
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We shall not have determined that as a result of the
consummation of the Offer and the purchase of shares that there
will be a reasonable likelihood that the shares either
(1) will be held of record by less than 300 persons or
(2) will be delisted
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from the New York Stock Exchange or be eligible for
deregistration under the Securities Exchange Act of 1934, as
amended (the Exchange Act).
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Neither the Company nor its advisors shall have determined,
whether due to the amount of shares tendered or to a change in
circumstances, that the Companys ability to effect or
realize benefits from the Reorganization may be adversely
impacted.
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Neither the Company nor its advisors shall have determined that
the Offer violates the Companys financing arrangements
then in effect.
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For a more detailed discussion of these and other conditions to
the Offer, please see Section 7 of this Offer to Purchase.
How do I
tender my shares?
If you want to tender all or part of your shares, you must do
one of the following before 5:00 p.m., New York City time,
on Tuesday, April 3, 2007 or any later time and date to
which the Offer may be extended:
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If your shares are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee, contact the
nominee and request that the nominee tender your shares for you;
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If you hold certificates registered in your own name, complete
and sign a Letter of Transmittal according to its instructions,
and deliver it, together with any required signature guarantees,
the certificates for your shares and any other documents
required by the Letter of Transmittal, to the Depositary at the
address appearing on the back cover page of this Offer to
Purchase;
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If you are a participant in the Celanese Americas Retirement
Savings Plan, which we refer to in this Offer to Purchase as the
401(k) Plan, and you wish to tender any of the
shares allocable to the units in your individual 401(k) Plan
account, follow the instructions described in Section 3 and
the separate materials related to the 401(k) Plan enclosed with
this Offer to Purchase;
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If you are an institution participating in the Book-Entry
Transfer Facility, tender your shares according to the procedure
for book-entry transfer described in Section 3; or
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If you are a holder of vested options, you may exercise your
vested options and tender any shares issued upon such exercise.
You must exercise your options sufficiently in advance of the
expiration date to receive your shares in order to tender.
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If you want to tender your shares, but:
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the certificates for your shares are not immediately available
or cannot be delivered to the Depositary by the expiration of
the Offer;
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you cannot comply with the procedure for book-entry transfer by
the expiration of the Offer; or
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your other required documents cannot be delivered to the
Depositary by the expiration of the Offer;
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you can still tender your shares if you comply with the
guaranteed delivery procedure described in Section 3.
If you wish to maximize the chance that we will purchase your
shares, you should check the box in the section entitled
Shares Tendered At Price Determined Under The
Offer in the section captioned Price (In Dollars)
Per Share At Which Shares Are Being Tendered in the
Letter of Transmittal. If you agree to accept the purchase price
determined in the Offer, your shares will be deemed to be
tendered at the minimum price of $28.00 per share for
purposes of determining the Final Purchase Price. You should
understand that this election may effectively lower the Final
Purchase Price and could result in your shares being purchased
at the minimum price of $28.00 per share.
You may contact the Information Agent, the Dealer Managers or
your broker, bank or other nominee for assistance. The contact
information for the Information Agent and the Dealer Managers is
set forth on the back cover of this Offer to Purchase. See
Section 3 and the Instructions to the Letter of Transmittal.
4
Once I
have tendered shares in the Offer, may I withdraw my tendered
shares?
Yes. You may withdraw any shares you have tendered at any time
before 5:00 p.m., New York City time, on Tuesday,
April 3, 2007, unless we extend the Offer, in which case
you may withdraw your shares until the expiration of the Offer,
as extended. If we have not accepted for payment the shares you
have tendered to us, you may also withdraw your shares at any
time after 5:00 p.m., New York City time, on May 1,
2007. See Section 4.
If you are a participant in the 401(k) Plan, you may withdraw
the tender of any shares allocable to the units in your
individual 401(k) Plan account that you have tendered at any
time before 4:00 p.m., New York City time, on Thursday,
March 29, 2007, unless we extend the Offer, in which case
you may withdraw the tender of shares allocable to the units in
your individual 401(k) Plan account until 4:00 p.m., New
York City time, on the day which is three business days prior to
the expiration of the Offer, as extended. See Section 4 and
the Letter to Participants in Celanese Americas Retirement
Savings Plan sent to 401(k) Plan participants along with
this Offer.
How do I
withdraw shares I previously tendered?
To properly withdraw shares, you must deliver on a timely basis
a written notice of your withdrawal to the Depositary at one of
the addresses appearing on the back cover of this Offer to
Purchase. Your notice of withdrawal must specify your name, the
number of shares to be withdrawn and the name of the registered
holder of the shares. Some additional requirements apply if the
certificates for shares to be withdrawn have been delivered to
the Depositary or if your shares have been tendered under the
procedure for book-entry transfer set forth in Section 3.
In what
order will you purchase the tendered shares?
We will purchase shares:
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first
, from all holders of odd lots of less
than 100 shares who properly tender all of their shares at
or below the Final Purchase Price selected by us and do not
properly withdraw them before the expiration date;
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second
, from all other stockholders who properly tender
shares at or below the Final Purchase Price selected by us, on a
pro rata basis, subject to the conditional tender provisions
described in Section 6; and
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third
, only if necessary to permit us to purchase
11,279,243 shares (or such greater number of shares as we
may elect to purchase, subject to applicable law) from holders
who have tendered shares subject to the condition that a
specified minimum number of the holders shares be
purchased if any of the holders shares are purchased in
the Offer as described in Section 6 (for which the
condition was not initially satisfied) by random lot, to the
extent feasible. To be eligible for purchase by random lot,
stockholders whose shares are conditionally tendered must have
tendered all of their shares.
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Therefore, we may not purchase all of the shares that you tender
even if you tender them at or below the Final Purchase Price.
See Section 1.
What do
our Board of Directors and Board of Managers think of the
Offer?
The Companys Board of Directors and the Board of Managers
of CIH have approved the Offer. However, none of the Company,
CIH, any member of the Companys Board of Directors or of
the Board of Managers of CIH, the Dealer Managers, the
Depositary or the Information Agent makes any recommendation to
you as to whether you should tender or refrain from tendering
your shares or as to the purchase price or purchase prices at
which you may choose to tender your shares. You must make your
own decision as to whether to tender your shares and, if so, how
many shares to tender and the purchase price or purchase prices
at which you will tender them. In doing so, you should read
carefully the information in this Offer to Purchase and in the
related Letter of Transmittal, including our reasons for making
the Offer. See Section 2. You should discuss whether to
tender your shares with your broker or other financial or tax
advisors.
If I
decide not to tender, how will the Offer affect my
shares?
Stockholders who decide not to tender will own a greater
percentage interest in the Companys outstanding shares
following the consummation of the Offer. See Section 2.
5
Following
the Offer, will you continue as a public company?
We believe that the shares will continue to be authorized for
listing on the New York Stock Exchange and that the Company will
continue to be subject to the reporting requirements of the
Exchange Act. See Section 2.
When and
how will you pay me for the shares I tender?
We, through CIH, will pay the Final Purchase Price net to the
seller, in cash, less applicable withholding taxes and without
interest, for the shares we purchase promptly after the
expiration of the Offer. We, through CIH, will pay for the
shares accepted for purchase by depositing the aggregate
purchase price with the Depositary, promptly after the
expiration date of the Offer. The Depositary will act as your
agent and will transmit to you the payment for all of your
shares accepted for payment. See Section 1 and
Section 5.
If I am a
holder of vested stock options, how do I participate in the
Offer?
If you are a holder of vested options, you may exercise your
vested options and tender any shares issued upon such exercise.
You must exercise your options sufficiently in advance of the
expiration date to receive your shares in order to tender.
If I am a
participant in the 401(k) Plan, how do I participate in the
Offer?
Participants in the Celanese Americas Retirement Savings Plan,
which we refer to in this Offer to Purchase as the 401(k)
Plan, may not use the Letter of Transmittal to direct the
tender of the shares allocable to the units in the
participants individual 401(k) Plan account, but instead
must follow the separate instructions related to those shares in
the Letter to Participants in the Celanese Americas
Retirement Savings Plan sent to such participants along
with this Offer to Purchase. If you are a participant in the
401(k) Plan and wish to have the trustee of the plan tender some
or all of the shares allocable to the units in your 401(k) Plan
account, you must complete, execute and return the separate
direction form included in the Letter to Participants in
the Celanese Americas Retirement Savings Plan at least
three business days prior to the expiration of the Offer (which,
unless the Offer is extended, will require you to return the
form by no later than 4:00 p.m., New York City time on
Thursday, March 29, 2007). See Section 3.
The proceeds received by the 401(k) Plan from any tender of
shares allocable to units in a participants plan account
will remain in the 401(k) Plan and may be withdrawn only in
accordance with the terms of the 401(k) Plan.
What is
the recent market price of my shares?
On March 2, 2007, the last full trading day before the
announcement of the Offer, the last reported sale price of the
Common Stock on the New York Stock Exchange was $28.33 per
share. You are urged to obtain current market quotations for the
Common Stock before deciding whether and at what purchase price
or purchase prices to tender your shares. See Section 8.
Will I
have to pay brokerage commissions if I tender my
shares?
If you are a registered stockholder and you tender your shares
directly to the Depositary, you will not incur any brokerage
commissions. If you hold shares through a broker, bank or other
nominee, we urge you to consult your broker, bank or other
nominee to determine whether any transaction costs are
applicable. See the Introduction, Section 3 and
Section 15.
Will I
have to pay stock transfer tax if I tender my shares?
If you instruct the Depositary in the Letter of Transmittal to
make the payment for the shares to the registered holder, you
will not incur any stock transfer tax. See Section 5.
6
What are
the United States federal income tax consequences if I tender my
shares?
Generally, your receipt of cash from us in exchange for the
shares of the Common Stock you tender will be a taxable
transaction for United States federal income tax purposes. The
cash you receive for your tendered shares of the Common Stock
will generally be treated for United States federal income tax
purposes either as consideration received in respect of a sale
or exchange of the shares of the Common Stock purchased by us or
as a distribution from us in respect of shares of the Common
Stock. See Section 13 for a more detailed discussion of the
tax treatment of the Offer. We urge you to consult with your own
tax advisor as to the particular tax consequences to you of the
Offer.
Non-United
States Holders (as defined in Section 13) are urged to
consult their tax advisors regarding the application of United
States federal income tax withholding and backup withholding,
including eligibility for a withholding tax reduction or
exemption, and the refund procedure.
Who
should I contact for questions about the Offer?
The Information Agent or the Dealer Managers can help answer
your questions. The Information Agent is Georgeson, and the
Dealer Managers are Merrill Lynch & Co. and Deutsche
Bank Securities Inc. Their contact information is set forth on
the back cover of this Offer to Purchase.
7
FORWARD-LOOKING
STATEMENTS
This Offer contains 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 Offer 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.
In addition, the following factors could cause our actual
results to differ materially from those 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 the Company
operates;
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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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increased price competition and the introduction of competing
products by other companies;
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changes in the degree of patent and other legal protection
afforded to the Companys 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 the Company operates;
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changes in currency exchange rates and interest rates;
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pending or future challenges to the domination and profit and
loss transfer agreement; and
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various other factors, both referenced and not referenced in
this Offer and the documents incorporated herein by reference.
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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, the Companys actual results, performance
or achievements may vary materially from those described in this
Offer as anticipated, believed, estimated, expected, intended,
planned or projected. Except as required by applicable law, we
neither intend nor assume any obligation to update these
forward-looking statements, which speak only as of their dates.
Please refer to the section entitled Risk Factors in
the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006 for information
on these and other factors.
8
INTRODUCTION
To the holders of the Common Stock:
The Company, through its wholly owned subsidiary CIH, invites
its stockholders to tender up to 11,279,243 shares of the
Common Stock for purchase by us at a price not greater than
$30.50 nor less than $28.00 per share, net to the seller in
cash, less any applicable withholding taxes and without
interest, upon the terms and subject to the conditions described
in this Offer to Purchase and in the related Letter of
Transmittal which together, as they may be amended or
supplemented from time to time, constitute the Offer.
Upon the terms and subject to the conditions of the Offer, we
will determine a single per share price, not greater than $30.50
nor less than $28.00 per share, that we will pay for shares
properly tendered and not properly withdrawn in the Offer,
taking into account the total number of shares so tendered and
the prices specified by tendering stockholders. We will select
the lowest purchase price that will allow us to buy
11,279,243 shares or, if fewer shares are properly
tendered, all shares that are properly tendered and not properly
withdrawn, at prices not greater than $30.50 nor less than
$28.00 per share. We refer to the price we will select as the
Final Purchase Price. We will acquire all shares in
the Offer at the same purchase price, on the terms and subject
to the conditions of the Offer, including proration provisions.
We will only purchase shares properly tendered at prices at or
below the Final Purchase Price and not properly withdrawn.
However, because of the odd lot priority, proration
(because more than the number of shares we seek are properly
tendered) and conditional tender provisions described in this
Offer to Purchase, we may not purchase all of the shares
tendered at or below the Final Purchase Price. Shares not
purchased in the Offer will be returned to the tendering
stockholders at our expense promptly after the expiration of the
Offer. See Section 1.
We expressly reserve the right, in our sole discretion, to
purchase more than 11,279,243 shares in the Offer, and to
amend the maximum aggregate purchase price, subject to
applicable law. See Section 1.
If you are a holder of vested options, you may exercise your
vested options and tender any of the shares issued upon
exercise. You must exercise your options sufficiently in advance
of the expiration date to receive your shares in order to tender.
If you are a participant in the 401(k) Plan and you wish to
tender any shares allocable to the units in your 401(k) Plan
account, follow the instructions described in Section 3 and
the separate materials related to the 401(k) Plan enclosed with
this Offer to Purchase.
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF
SHARES BEING TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO
OTHER CONDITIONS. SEE SECTION 7.
THE COMPANYS BOARD OF DIRECTORS AND THE BOARD OF
MANAGERS OF CIH HAVE APPROVED THE OFFER. HOWEVER, NONE OF THE
COMPANY, CIH, ANY MEMBER OF THE COMPANYS BOARD OF
DIRECTORS OR THE BOARD OF MANAGERS OF CIH, THE DEALER MANAGERS,
THE INFORMATION AGENT OR THE DEPOSITARY, MAKE ANY RECOMMENDATION
TO YOU AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING
YOUR SHARES OR AS TO THE PURCHASE PRICE OR PURCHASE PRICES
AT WHICH YOU MAY CHOOSE TO TENDER YOUR SHARES. YOU MUST MAKE
YOUR OWN DECISION AS TO WHETHER TO TENDER YOUR SHARES AND,
IF SO, HOW MANY SHARES TO TENDER AND THE PURCHASE PRICE OR
PURCHASE PRICES AT WHICH YOU WILL TENDER THEM. IN DOING SO, YOU
SHOULD READ CAREFULLY THE INFORMATION IN THIS OFFER TO PURCHASE
AND IN THE RELATED LETTER OF TRANSMITTAL, INCLUDING OUR REASONS
FOR MAKING THE OFFER. SEE SECTION 2. YOU SHOULD DISCUSS
WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY
SHARES TO TENDER AND THE PURCHASE PRICE OR PURCHASE PRICES
AT WHICH YOU WILL TENDER THEM WITH YOUR FINANCIAL AND TAX
ADVISORS.
The Companys directors and executive officers and
CIHs managers have advised us that they do not intend to
tender their shares in the Offer. See Section 11. However,
we have agreed to purchase up to 1,835,511 shares (which
number of shares purchased may be proportionately increased or
decreased if the number of shares purchased in the Offer is
increased or decreased, respectively) at the Final Purchase
Price from Blackstone, on the eleventh business day after the
expiration of the Offer. Blackstone will not be tendering any
shares in the Offer. Blackstone holds approximately 14% of the
Common Stock and will not be tendering any shares in the Offer.
Blackstone representatives occupy four out of the eleven seats
on the Board of Directors of the Company and abstained from
voting to approve this Offer. See Section 11.
9
We will pay all fees and expenses incurred in connection with
the Offer by the Dealer Managers, the Information Agent and the
Depositary. See Section 15.
As of March 2, 2007, the Company had 159,643,063 issued and
outstanding shares of Common Stock. The 11,279,243 shares
that we are offering to purchase pursuant to the Offer represent
approximately 7% of the shares of Common Stock outstanding on
March 2, 2007. The Companys shares are traded on the
New York Stock Exchange under the symbol CE. On
March 2, 2007, the last full trading day prior to the
announcement of the Offer, the last reported sale price for the
Common Stock on the New York Stock Exchange was $28.33 per
share. Stockholders are urged to obtain current market
quotations for the shares before deciding whether and at what
purchase price or purchase prices to tender their shares. See
Section 8 and Section 11.
The Companys principal executive offices are located at
1601 West LBJ Freeway, Dallas, Texas,
75234-6034
and the Companys phone number is
(972) 443-4000.
The business address of CIH is 9, rue Sainte Zithe, L-2763
Luxembourg and its telephone number is
+352-268-90120.
THE
OFFER
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1.
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Number of
Shares; Proration.
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Upon the terms and subject to the conditions of the Offer, we
will purchase up to 11,279,243 shares of the Common Stock,
or such lesser number of shares as are properly tendered and not
properly withdrawn in accordance with Section 4 before the
expiration date at a price not greater than $30.50 nor less than
$28.00 per share, net to the seller in cash, less any
applicable withholding taxes and without interest.
The term expiration date means 5:00 p.m., New
York City time, on Tuesday, April 3, 2007, unless and until
we, in our sole discretion, shall have extended the period of
time during which the Offer will remain open, in which event the
term expiration date shall refer to the latest time
and date at which the Offer, as so extended by us, shall expire.
See Section 14 for a description of our right to extend,
delay, terminate or amend the Offer.
In accordance with Instruction 5 of the Letter of
Transmittal, stockholders desiring to tender shares must either
(1) specify that they are willing to sell their shares to
us at the Final Purchase Price (which could result in the
tendering stockholder receiving a purchase price per share as
low as $28.00), or (2) specify the price or prices, not
greater than $30.50 nor less than $28.00 per share, at
which they are willing to sell their shares to us under the
Offer. Prices may be specified in multiples of $0.25. Promptly
following the expiration date, we will determine the Final
Purchase Price that we will pay for shares properly tendered and
not properly withdrawn, taking into account the number of shares
tendered and the prices specified by tendering stockholders. We
will select the lowest purchase price, not greater than $30.50
nor less than $28.00 per share, that will allow us to
purchase 11,279,243 shares (or such greater number of
shares as we may elect to purchase). We will purchase all shares
in the Offer at the same purchase price.
If you agree to accept the purchase price determined in the
Offer, your shares will be deemed to be tendered at the minimum
price of $28.00 per share for purposes of determining the
Final Purchase Price. You should understand that this election
may effectively lower the Final Purchase Price and could result
in your shares being purchased at the minimum price of
$28.00 per share.
We will announce the Final Purchase Price by press release
promptly after such determination has been made. We will only
purchase shares properly tendered at prices at or below the
Final Purchase Price and not properly withdrawn. However,
because of the odd lot priority, proration and
conditional tender provisions of the Offer, we may not purchase
all of the shares tendered at or below the Final Purchase Price
if more than the number of shares we seek are properly tendered
at or below the Final Purchase Price. We will return all shares
tendered and not purchased pursuant to the Offer, including
shares tendered at prices in excess of the Final Purchase Price
and shares not purchased because of proration or conditional
tenders, to the tendering stockholders at our expense, promptly
following the expiration date.
By following the Instructions to the Letter of Transmittal,
stockholders can specify different minimum prices for specified
portions of their shares, but a separate Letter of Transmittal
must be submitted for shares tendered at each price.
Stockholders can also specify the order in which the specified
portions will be purchased in the event that, as a result of
proration or otherwise,
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some but not all of the tendered shares are purchased pursuant
to the Offer. In the event a stockholder does not designate such
order and fewer than all shares are purchased due to proration,
the Depositary will select the order of shares purchased.
We expressly reserve the right, in our sole discretion, to
purchase more than 11,279,243 shares under the Offer,
subject to applicable law. In accordance with the rules of the
SEC, we may purchase an additional amount of shares not to
exceed 2% of the outstanding shares (approximately
3,192,861 shares as of March 2, 2007) without
amending or extending the Offer. However, if we purchase an
additional number of shares in excess of 2% of the outstanding
shares, we will amend and extend the offer in compliance with
applicable law. See Section 14.
In the event of an over-subscription of the Offer as described
below, shares tendered at or below the Final Purchase Price
prior to the expiration date will be subject to proration,
except for odd lots. The proration period and
withdrawal rights also expire on the expiration date.
The Offer is not conditioned on any minimum number of shares
being tendered. The Offer is, however, subject to other
conditions. See Section 7.
Priority of Purchases.
On the terms and
subject to the conditions of the Offer, if more than
11,279,243 shares (or such greater number of shares as we
may elect to purchase, subject to applicable law), have been
properly tendered at prices at or below the Final Purchase Price
and not properly withdrawn before the expiration date, we will
purchase such properly tendered shares on the basis set forth
below:
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first
, we will purchase all shares properly tendered and
not properly withdrawn by any odd lot holder, as
described below, who:
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tenders all shares owned beneficially or of record by such
odd lot holder at a price at or below the Final
Purchase Price selected by us (tenders of less than all of the
shares owned by such odd lot holder will not qualify
for this preference); and
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completes the box entitled Odd Lots in the related
Letter of Transmittal, and if applicable, in the Notice of
Guaranteed Delivery;
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second
, subject to the conditional tender provisions
described in Section 6, we will purchase all other shares
properly tendered at or below the Final Purchase Price selected
by us on a pro rata basis with appropriate adjustment to avoid
purchases of fractional shares; and
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third
, only if necessary to permit us to purchase the
total number of shares to be purchased in this Offer we will
purchase shares conditionally tendered (for which the condition
was not initially satisfied) at or below the Final Purchase
Price selected by us, by random lot, to the extent feasible. To
be eligible for purchase by random lot, stockholders whose
shares are conditionally tendered must have tendered all of
their shares.
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As a result of the foregoing priorities applicable to the
purchase of shares tendered, it is possible that fewer than all
shares tendered by a stockholder will be purchased or that, if a
tender is conditioned upon the purchase of a specified number of
shares, none of those shares will be purchased even though those
shares were tendered at prices at or below the Final Purchase
Price.
As we noted above, we may elect to purchase more than
11,279,243 shares in the Offer, subject to applicable law.
If we do so, the preceding provisions will apply to the greater
number of shares.
Odd Lots.
For purposes of the Offer, the term
odd lots means all shares properly tendered at
prices at or below the Final Purchase Price selected by us held
by a stockholder who owns beneficially or of record an aggregate
of fewer than 100 shares who we refer to as an odd
lot holder, and so certifies in the appropriate place on
the related Letter of Transmittal and, if applicable, the Notice
of Guaranteed Delivery. To qualify for this preference, an odd
lot holder must tender all shares owned beneficially or of
record by the odd lot holder in accordance with the procedures
described in Section 3. As set forth above, odd lots will
be accepted for payment before proration, if any, of the
purchase of other tendered shares. This preference is not
available to partial tenders or to beneficial or record holders
of an aggregate of 100 or more shares, even if these holders
have separate accounts or certificates representing fewer than
100 shares. By accepting the Offer, an odd lot holder who
holds shares in his or her name and tenders his or her shares
directly to the Depositary would not only avoid the payment of
brokerage commissions, but also would avoid any applicable odd
lot discounts in a sale of the holders shares. Any odd lot
holder wishing to tender all of such odd lot holders
shares pursuant to the Offer should complete the box entitled
Odd Lots in the Letter of Transmittal and, if
applicable, the Notice of Guaranteed Delivery.
11
Proration.
If proration of tendered shares is
required, the Depositary will determine the proration factor
promptly following the expiration date. Proration for each
stockholder tendering shares, other than odd lot holders, will
be based on the ratio of the number of shares properly tendered
and not properly withdrawn by such stockholder to the total
number of shares properly tendered and not properly withdrawn by
all stockholders, other than odd lot holders, at or below the
Final Purchase Price, subject to conditional tenders. The
preliminary results of any proration will be announced by press
release promptly after the expiration date. After the expiration
date, stockholders may obtain preliminary proration information
from the Information Agent and also may be able to obtain the
information from their brokers.
As described in Section 13, the number of shares that we
will purchase from a stockholder pursuant to the Offer may
affect the United States federal income tax consequences to the
stockholder of the purchase and, therefore, may be relevant to a
stockholders decision whether or not to tender shares. The
Letter of Transmittal affords each stockholder who tenders
shares registered in such stockholders name directly to
the Depositary the opportunity to designate the order of
priority in which shares tendered are to be purchased in the
event of proration as well as the ability to condition such
tender on a minimum number of shares being purchased.
This Offer to Purchase and the related Letter of Transmittal
will be mailed to record holders of the shares and will be
furnished to brokers, dealers, commercial banks, trust companies
and other nominees and similar persons whose names, or the names
of whose nominees, appear on our stockholder list or, if
applicable, who are listed as participants in a clearing
agencys security position listing for subsequent
transmittal to beneficial owners of shares.
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2.
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Purpose
of the Offer; Certain Effects of the Offer.
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Purpose of the Offer.
The Board of Directors
believes that the modified Dutch Auction tender
offer set forth in this Offer to Purchase represents a mechanism
to provide all of the Companys stockholders with the
opportunity to tender all or a portion of their shares and,
thereby, receive a return of some or all of their investment if
they so elect. The Offer provides stockholders (particularly
those who, because of the size of their shareholdings, might not
be able to sell their shares without potential disruption to the
share price) with an opportunity to obtain liquidity with
respect to all or a portion of their shares without potential
disruption to the share price. In addition, if we complete the
Offer, stockholders who do not participate in the Offer will
automatically increase their relative percentage ownership
interest in the Company and its future operations.
The Offer also provides stockholders with an efficient way to
sell their shares without incurring brokers fees or
commissions associated with open market sales. Furthermore, odd
lot holders who hold shares registered in their names and tender
their shares directly to the Depositary and whose shares are
purchased in the Offer will avoid any applicable odd lot
discounts that might otherwise be payable on sales of their
shares. See Section 1.
With the shares received in this Offer, the Company will
reorganize the corporate organizational structure of certain of
its subsidiaries to achieve more integrated global operations
and to provide various financial, operational and tax
efficiencies. The Reorganization is a component of the
implementation of the overall international financing and
operating strategy. As part of the Reorganization, CIH will
exchange the shares purchased in the Offer for a controlling
interest in one or more of the Companys wholly owned
subsidiaries. The Company may issue additional shares of Common
Stock to CIH to effectuate the Reorganization. Because all the
shares issued as part of the Reorganization are held by wholly
owned subsidiaries of the Company, the shares will not be
considered outstanding on the Companys consolidated
financial statements or for voting purposes. The Company is and
will continue to be the ultimate beneficial owner of all
subsidiaries involved in the internal Reorganization.
This Offer is part of a series of transactions whereby the
Company will effect the Restructuring. In addition to this Offer
and the Reorganization as described herein, the Restructuring is
expected to include the following components:
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The refinancing of the Companys existing credit agreements
and entry by Celanese US Holdings LLC into new senior credit
facilities consisting of a $600 million revolving credit
facility with a term of six years, a $228 million
credit-linked
revolving facility with a term of seven years and a term loan
with a dollar denominated tranche of $2,280 million and a
Euro tranche of 400 million, in each case with a term
of seven years; and
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The tender offer and consent solicitation by Crystal US Holdings
3 L.L.C. and Crystal US Sub 3 Corp. to purchase for cash any and
all of their outstanding 10% Series A Senior Discount Notes
due 2014 and
10
1
/
2
%
Series B Senior Discount Notes Due 2014 and the tender
offer by Celanese US Holdings LLC to purchase for cash any and
off of its outstanding U.S. Dollar-denominated
9
5
/
8
% Senior
Subordinated Notes due 2014 and Euro-denominated
10
3
/
8
% Senior
Subordinated Notes due 2014 and to eliminate substantially all
covenants from the related indentures.
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12
Following the completion or termination of the Offer, we may,
from time to time, repurchase shares on the open market or
through private or public transactions in accordance with
applicable law. Exchange Act Rule 13e-4 generally prohibits
us and our affiliates from purchasing any shares of Common
Stock, other than in the Offer, until at least 10 business days
after the expiration date, except pursuant to certain limited
exceptions provided in Exchange Act Rule 14e-5.
The Companys directors and executive officers and
CIHs managers have advised us that they do not intend to
tender their shares in the Offer. See Section 11. However,
we have agreed to purchase up to 1,835,511 shares (which
number of shares purchased may be proportionately increased or
decreased if the number of shares purchased in the Offer is
increased or decreased, respectively) at the Final Purchase
Price from Blackstone, on the eleventh business day after the
expiration date. Blackstone holds approximately 14% of the
Common Stock and will not be tendering any shares in the Offer.
Blackstone representatives occupy four out of the eleven seats
on the Board of Directors of the Company and abstained from
voting to approve this Offer. See Section 11.
Benjamin J. Jenkins, Senior Managing Director of The Blackstone
Group L.P., has informed the Company that he intends to resign
his position on the Board of Directors effective as of the date
of the Companys annual stockholders meeting
currently scheduled to be held on April 26, 2007. On
March 2, 2007, the Board of Directors approved Mark C.
Rohr, president and chief executive officer of Albemarle
Corporation, as a nominee for election to the Board of Directors
at its next annual stockholders meeting.
Certain Effects of the Offer.
Stockholders who
decide not to tender will own a greater percentage interest in
the Companys outstanding shares following the consummation
of the Offer. These stockholders will also continue to bear the
risks associated with owning shares of Common Stock, including
risks resulting from our purchase of shares in the Offer.
Stockholders may be able to sell non-tendered shares in the
future on the New York Stock Exchange or otherwise, at a net
price significantly higher or lower than the Final Purchase
Price in the Offer. We can give no assurance, however, as to the
price at which a stockholder may be able to sell his or her
shares in the future.
We anticipate that there will be a sufficient number of shares
outstanding and publicly traded following completion of the
Offer to ensure a continued trading market for the shares. Based
upon published guidelines of the New York Stock Exchange, we do
not believe that our purchase of shares under the Offer will
cause the remaining outstanding shares to be delisted from the
New York Stock Exchange. We also believe that our purchase of
shares under the Offer will not result in the shares becoming
eligible for deregistration under the Exchange Act.
THE COMPANYS BOARD OF DIRECTORS AND THE BOARD OF
MANAGERS APPROVED THE OFFER. HOWEVER, NONE OF THE COMPANY, CIH,
ANY MEMBER OF THE COMPANYS BOARD OF DIRECTORS OR THE BOARD
OF MANAGERS OF CIH, THE DEALER MANAGERS, THE INFORMATION AGENT
OR THE DEPOSITARY MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER
YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES OR
AS TO THE PURCHASE PRICE OR PURCHASE PRICES AT WHICH YOU MAY
CHOOSE TO TENDER YOUR SHARES. YOU MUST MAKE YOUR OWN DECISION AS
TO WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY
SHARES TO TENDER AND THE PURCHASE PRICE OR PURCHASE PRICES
AT WHICH YOU WILL TENDER THEM.
Except as disclosed in this Offer to Purchase, the Company
currently has no plans, proposals or negotiations that relate to
or would result in:
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any extraordinary transaction, such as a merger, reorganization
or liquidation, involving the Company or any of its
subsidiaries, other than wholly internal transactions between
and among wholly owned subsidiaries of the Company;
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any purchase, sale or transfer of an amount of the
Companys assets or any of our subsidiaries assets
which is material to the Company and its subsidiaries, taken as
a whole;
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any material change in the present Board of Directors or
management or any plans or proposals to change the number or the
terms of directors (although the Company may fill vacancies
arising on the Board) or to change any material term of the
employment contract of any executive officer;
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any material change in the Companys present dividend rate
or policy, indebtedness or capitalization, corporate structure
or business;
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any class of the Companys equity securities ceasing to be
authorized to be listed on the New York Stock Exchange;
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the termination or suspension of the Companys obligation
to file reports under Sections 13(a) or 15(d) of the
Exchange Act;
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the acquisition or disposition by any person of the
Companys securities;
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any changes in the Companys charter, bylaws or other
governing instruments or other actions that could impede the
acquisition of control of the Company; or
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any material change in the Companys corporate structure or
business.
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Nothing in this Offer will preclude us from pursuing, developing
or engaging in future plans, proposals or negotiations that
relate to or would result in one or more of the foregoing
events, subject to applicable law.
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3.
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Procedures
for Tendering Shares.
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Proper Tender of Shares.
For shares to be
tendered pursuant to the Offer, the certificates for such shares
(or confirmation of receipt of such shares pursuant to the
procedure for book-entry transfer set forth below), together
with a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile of the Letter of
Transmittal), including any required signature guarantees, or an
Agents Message (as defined below), and any
other documents required by the Letter of Transmittal, must be
received before 5:00 p.m., New York City time, on Tuesday,
April 3, 2007 by the Depositary at its address set forth on
the back cover of this Offer to Purchase.
In the alternative, the tendering stockholder must, before the
expiration date, comply with the guaranteed delivery procedures
described below.
In accordance with Instruction 5 of the Letter of
Transmittal, stockholders desiring to tender shares under the
Offer must complete the section captioned Price (In
Dollars) Per Share At Which Shares Are Being Tendered
by either (1) checking the box in the section entitled
Shares Tendered At Price Determined Under The
Offer or (2) checking one of the boxes in the section
entitled Shares Tendered At Price Determined By
Stockholder, indicating the price at which shares are
being tendered.
Stockholders who desire to tender shares at more than one price
must complete a separate Letter of Transmittal for each price at
which shares are tendered. However, the same shares cannot be
tendered (unless properly withdrawn previously in accordance
with Section 4) at more than one price. To tender
shares properly, one and only one box must be checked in the
section captioned Price (In Dollars) Per Share At Which
Shares Are Being Tendered in the Letter of
Transmittal.
If tendering stockholders wish to maximize the chance that we
will purchase their shares, they should check the box in the
section entitled Shares Tendered At Price Determined
Under The Offer in the Letter of Transmittal under the
section captioned Price (In Dollars) Per Share At Which
Shares Are Being Tendered. If you agree to accept the
purchase price determined in the Offer, your shares will be
deemed to be tendered at the minimum price of $28.00 per
share for purposes of determining the Final Purchase Price. You
should understand that this election may effectively lower the
Final Purchase Price and could result in your shares being
purchased at the minimum price of $28.00 per share. If
tendering stockholders wish to indicate a specific price (in
multiples of $0.25) at which their shares are being tendered,
they must check the appropriate box in the section entitled
Shares Tendered At Price Determined By
Stockholder in the section captioned Price (In
Dollars) Per Share At Which Shares Are Being Tendered
in the Letter of Transmittal. Tendering stockholders should be
aware that this election could mean that none of their shares
will be purchased if they check a box other than a box
representing the price at or below the Final Purchase Price. In
addition, odd lot holders who tender all of their
shares must complete the section entitled Odd Lots
in the Letter of Transmittal to qualify for the preferential
treatment available to odd lot holders as set forth
in Section 1.
Stockholders holding their shares through a broker, dealer,
commercial bank, trust company or other nominee must contact the
nominee in order to tender their shares. Stockholders who hold
shares through nominees are urged to consult their nominees to
determine whether transaction costs may apply if stockholders
tender shares through the nominees and not directly to the
Depositary.
Stockholders may tender shares subject to the condition that
all, or a specified minimum number of shares, be purchased. Any
stockholder desiring to make such a conditional tender should so
indicate in the box entitled Conditional Tender in
the Letter of Transmittal. It is the tendering
stockholders responsibility to determine the minimum
number of shares to be
14
purchased. Stockholders should consult their own financial and
tax advisors with respect to the effect of proration of the
Offer and the advisability of making a conditional tender. See
Section 6 and Section 13.
Signature Guarantees and Method of
Delivery.
No signature guarantee is required if:
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the Letter of Transmittal is signed by the registered holder of
the shares (which term, for purposes of this Section 3,
will include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner
of the shares) tendered and such holder has not completed either
the section entitled Special Payment Instructions or
the section entitled Special Delivery Instructions
in the Letter of Transmittal; or
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shares are tendered for the account of a bank, broker, dealer,
credit union, savings association or other entity which is a
member in good standing of the Securities Transfer Agents
Medallion Program or an eligible guarantor
institution, as the term is defined in Exchange Act
Rule 17Ad-15, each of the foregoing constituting an
Eligible Institution. See Instruction 1 of the
Letter of Transmittal.
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If a certificate for shares is registered in the name of a
person other than the person executing the Letter of
Transmittal, or if payment is to be made, or shares not
purchased or tendered are to be issued, to a person other than
the registered holder, then the certificate must be endorsed or
accompanied by an appropriate stock power, signed in either case
exactly as the name of the registered holder appears on the
certificate, with the signature guaranteed by an Eligible
Institution.
Payment for shares tendered and accepted for payment pursuant to
the Offer will be made only after timely receipt by the
Depositary of:
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one of (a) certificates for the shares or (b) a timely
confirmation of the book-entry transfer of the shares into the
Depositarys account at the Book-Entry Transfer Facility as
described below;
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one of (a) a properly completed and duly executed Letter of
Transmittal or a manually signed facsimile of the Letter of
Transmittal, including any required signature guarantees or
(b) an Agents Message (as defined below) in the case
of a book-entry transfer; and
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any other documents required by the Letter of Transmittal.
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The method of delivery of all documents, including
certificates for shares, the Letter of Transmittal and any other
required documents, is at the election and risk of the tendering
stockholder. If delivery is by mail, then registered mail with
return receipt requested, properly insured, is recommended. In
all cases, sufficient time should be allowed to ensure timely
delivery.
All deliveries in connection with the Offer, including a
Letter of Transmittal and certificates for shares, must be made
to the Depositary and not to us, the Dealer Managers, the
Information Agent or the Book-Entry Transfer Facility. ANY
DOCUMENTS DELIVERED TO US, THE DEALER MANAGERS, THE INFORMATION
AGENT OR THE BOOK-ENTRY TRANSFER FACILITY WILL NOT BE FORWARDED
TO THE DEPOSITARY AND WILL NOT BE DEEMED TO BE PROPERLY
TENDERED.
Book-Entry Delivery.
The Depositary will
establish an account with respect to the shares for purposes of
the Offer at the Book-Entry Transfer Facility within two
business days after the date of this Offer to Purchase, and any
financial institution that is a participant in the Book-Entry
Transfer Facilitys system may make book-entry delivery of
the shares by means of a book-entry transfer by causing the
Book-Entry Transfer Facility to transfer shares into the
Depositarys account in accordance with the Book-Entry
Transfer Facilitys procedures for transfer. Although
delivery of shares may be effected through a book-entry transfer
into the Depositarys account at the Book-Entry Transfer
Facility, a properly completed and duly executed Letter of
Transmittal or a manually signed facsimile of the Letter of
Transmittal, including any required signature guarantees, or an
Agents Message, and any other required documents must, in
any case, be transmitted to and received by the Depositary at
its address set forth on the back cover of this Offer to
Purchase before the expiration date, or the tendering
stockholder must comply with the guaranteed delivery procedure
described below. Delivery of the Letter of Transmittal and any
other required documents to the Book-Entry Transfer Facility
does not constitute delivery to the Depositary.
The term Agents Message means a message
transmitted by the Book-Entry Transfer Facility to, and received
by, the Depositary, which states that the Book-Entry Transfer
Facility has received an express acknowledgment from the
participant in the Book-Entry Transfer Facility tendering the
shares that such participant has received and agrees to be bound
by the terms of the Letter of Transmittal and that we may
enforce such agreement against the participant.
15
Guaranteed Delivery.
If you wish to tender
shares in the Offer and your certificates for shares are not
immediately available or the procedures for book-entry transfer
cannot be completed on a timely basis or time will not permit
all required documents to reach the Depositary prior to the
expiration date, your tender may be effected if all the
following conditions are met:
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your tender is made by or through an eligible institution;
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a properly completed and duly executed Notice of Guaranteed
Delivery in the form we have provided is received by the
Depositary, as provided below, prior to the expiration
date; and
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the Depositary receives at one of its addresses listed on the
back cover of this Offer to Purchase and within the period of
three trading days after the date of execution of that Notice of
Guaranteed Delivery, either: (i) the certificates
representing the shares being tendered, in the proper form for
transfer, together with all other required documents and a
Letter of Transmittal, which has been properly completed and
duly executed and includes all signature guarantees required; or
(ii) confirmation of book-entry transfer of the shares into
the Depositarys account at the book-entry transfer
facility, together with all other required documents and either
a Letter of Transmittal, which has been properly completed and
duly executed and includes all signature guarantees required, or
an Agents Message.
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A Notice of Guaranteed Delivery must be delivered to the
Depositary by hand, overnight courier, facsimile transmission or
mail before the expiration date and must include a guarantee by
an eligible institution in the form set forth in the Notice of
Guaranteed Delivery.
Return of Unpurchased Shares.
If any tendered
shares are not purchased under the Offer or are properly
withdrawn before the expiration date, or if less than all shares
evidenced by a stockholders certificates are tendered, we
will return certificates for unpurchased shares promptly after
the expiration or termination of the Offer or, in the case of
shares tendered by book-entry transfer at the Book-Entry
Transfer Facility, the shares will be credited to the
appropriate account maintained by the tendering stockholder at
the Book-Entry Transfer Facility, in each case without expense
to the stockholder.
Determination of Validity; Rejection of Shares; Waiver of
Defects; No Obligation to Give Notice of
Defects.
All questions as to the number of shares
to be accepted, the Final Purchase Price to be paid for shares
to be accepted and the validity, form, eligibility (including
time of receipt) and acceptance for payment of any tender of
shares will be determined by us, in our sole discretion, and our
determination will be final and binding on all parties. We
reserve the absolute right to reject any or all tenders of any
shares that we determine are not in proper form or the
acceptance for payment of or payment for which may, in the
opinion of our counsel, be unlawful. We also reserve the
absolute right to waive any of the conditions of the Offer on or
prior to the expiration date, or any defect or irregularity in
any tender with respect to any particular shares or any
particular stockholder (whether or not we waive similar defects
or irregularities in the case of other stockholders), and our
interpretation of the terms of the Offer will be final and
binding on all parties. In the event a condition is waived with
respect to any particular stockholder, the same condition will
be waived with respect to all stockholders. No tender of shares
will be deemed to have been properly made until all defects or
irregularities have been cured by the tendering stockholder or
waived by us. We will not be liable for failure to waive any
condition of the Offer, or any defect or irregularity in any
tender of shares. Neither we nor the Dealer Managers, the
Depositary, the Information Agent or any other person will be
obligated to give notice of any defects or irregularities in
tenders, nor will any of the foregoing incur any liability for
failure to give any such notification.
Tendering Stockholders Representation and Warranty; Our
Acceptance Constitutes an Agreement.
It is a
violation of Exchange Act
Rule 14e-4
for a person, directly or indirectly, to tender shares for that
persons own account unless, at the time of tender and at
the end of the proration period or period during which shares
are accepted by lot (including any extensions of such period),
the person so tendering (1) has a net long
position equal to or greater than the amount of common
stock tendered in (a) common stock or (b) other
securities convertible into or exchangeable or exercisable for
common stock and, upon acceptance of the tender, will acquire
the common stock by conversion, exchange or exercise and
(2) will deliver or cause to be delivered the common stock
in accordance with the terms of the Offer.
Rule 14e-4
also provides a similar restriction applicable to a tender on
behalf of another person.
A tender of Common Stock in accordance with any of the
procedures described above will constitute the tendering
stockholders acceptance of the terms and conditions of the
Offer, as well as the tendering stockholders
representation and warranty to us that (1) the stockholder
has a net long position, within the meaning of
Rule 14e-4
promulgated under the Exchange Act, in the Common Stock, or
equivalent securities at least equal to the Common Stock, being
tendered, and (2) the tender of Common Stock complies with
Rule 14e-4.
Our acceptance for payment of Common Stock tendered pursuant to
the
16
Offer will constitute a binding agreement between the tendering
stockholder and us on the terms and subject to the conditions of
the Offer.
Lost or Destroyed Certificates.
Stockholders
whose certificates for part or all of their shares have been
lost, destroyed or stolen may contact Computershare Trust
Company, N.A., the Depositary and transfer agent for the shares,
at the address set forth on the back cover of this Offer to
Purchase for instructions to obtain a replacement certificate.
That certificate will then be required to be submitted together
with the Letter of Transmittal in order to receive payment for
shares that are tendered and accepted for payment. A bond may be
required to be posted by the stockholder to secure against the
risk that the certificates may be subsequently recirculated. The
Letter of Transmittal and related documents cannot be processed
until the procedures for replacing lost or destroyed
certificates have been followed. Stockholders are requested to
contact the Depositary immediately in order to permit timely
processing of this documentation. Certificates for shares,
together with a properly completed Letter of Transmittal and any
other documents required by the Letter of Transmittal, must be
delivered to the Depositary and not to us, the Dealer Managers
or the Information Agent. Any certificates delivered to us, the
Dealer Managers or the Information Agent will not be forwarded
to the Depositary and will not be deemed to be properly tendered.
Procedures for Participants in the Celanese Americas
Retirement Savings Plan.
A participant in the
Celanese Americas Retirement Savings Plan, which we refer to as
the 401(k) Plan, may instruct State Street Bank and
Trust Company (State Street), as trustee of the
401(k) Plan, to tender some or all of the shares allocable to
the units in the participants account by completing the
Director Form in accordance with the instructions in the
Letter to Participants in the Celanese Americas Retirement
Savings Plan furnished separately to participants in the
401(k) Plan and returning it to State Street in accordance with
those instructions. All documents furnished to stockholders
generally in connection with the Offer will be made available to
participants whose plan accounts are credited with shares.
Participants in the 401(k) Plan cannot use the Letter of
Transmittal to direct the tender of shares allocable to units in
their 401(k) Plan, but must use the Director Form included in
the separate instruction letter sent to them.
Participants
in the 401(k) Plan who also hold shares outside of the plan,
however, must (i) use the Letter of Transmittal to tender
shares held outside of the plan and (ii) complete the
Director Form according to the instructions in the Letter
to Participants in the Celanese Americas Retirement Savings
Plan for shares allocable to units held in their 401(k)
Plan. The 401(k) Plan is prohibited by law from selling shares
to the Company for a price that is less than the prevailing
market price of the Common Stock. Accordingly, if a participant
elects to tender shares allocable to units at a price that is
lower than the closing price of the Common Stock on the last
trading day before the date the Offer expires, the tender price
a participant elects will be deemed to have been increased to
the closest tender price that is not less than the closing price
of the Common Stock on the New York Stock Exchange on the date
the Offer expires. This could result in a participants
shares allocable to units in the participants plan account
not being purchased in the Offer. If the closing price of the
Common Stock on the last trading day before the date the Offer
expires is greater than the maximum price available in the
offer, none of the shares allocable to units in the
participants plan account will be tendered and a
participants tender will be deemed to have been withdrawn.
The proceeds received by the 401(k) Plan from any tender of
shares allocable to units in a participants plan account
will remain in the 401(k) Plan and may be withdrawn only in
accordance with the terms of the 401(k) Plan.
Participants in the 401(k) Plan are urged to read the separate
Letter to Participants in the Celanese Americas Retirement
Savings Plan and related materials carefully.
Backup Withholding.
Under the United States
federal income tax laws, payments to a tendering stockholder may
be subject to backup withholding at the applicable
statutory rate (currently 28%), unless a tendering stockholder:
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provides a correct taxpayer identification number (which, for an
individual stockholder, is the stockholders social
security number) and any other required information; or
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is an exempt recipient and, when required, demonstrates this
fact and otherwise complies with applicable requirements of the
backup withholding rules.
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A stockholder that does not provide a correct taxpayer
identification number may be subject to penalties imposed by the
Internal Revenue Service (the IRS). To prevent
backup withholding on cash payable under the Offer, each
stockholder should provide the Depositary with his or her
correct taxpayer identification number and certify that he or
she is not subject to backup withholding by completing the
Substitute IRS
Form W-9
included in the Letter of Transmittal.
Non-United
States Holders
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should complete and sign the appropriate IRS
Form W-8,
a copy of which may be obtained from the Depositary, in order to
avoid backup withholding. See Section 13 and
Instruction 10 to the Letter of Transmittal.
Backup withholding is not an additional tax. Taxpayers may use
amounts withheld as a credit against their United States federal
income tax liability or may claim a refund of such amounts if
they timely provide certain required information to the IRS.
United
States Federal Withholding Tax on Payments to
Non-United
States Holders.
Non-United
States Holders (as defined in Section 13) may be
subject to a 30% United States federal withholding tax on
payments received pursuant to the Offer. As described in
Section 13, a sale of shares pursuant to the Offer may
qualify for sale or exchange treatment or may constitute a
taxable dividend, depending on a particular stockholders
facts and circumstances. The Depositary generally will treat
payments made to
Non-United
States Holders pursuant to the Offer as taxable dividends.
Accordingly, in compliance with United States federal income tax
laws, the Depositary will withhold 30% of the gross proceeds
payable to a
Non-United
States Holder unless the
Non-United
States Holder provides the Depositary with (i) a properly
executed IRS
Form W-8BEN
(or other applicable
Form W-8)
certifying that it is entitled to a reduced rate of withholding
under an applicable tax treaty or (ii) a properly executed
IRS
Form W-8ECI
certifying that it is exempt from withholding because the
payment is effectively connected with the
Non-United
States Holders conduct of a trade or business in the
United States. A
Non-United
States Holder may be eligible to obtain a refund of all or a
portion of any tax withheld if its sale of shares of Common
Stock pursuant to the Offer satisfies the requirements for sale
or exchange treatment described in Section 13 or the
Non-United
States Holder is otherwise able to establish that no tax or a
reduced amount of tax is due.
Non-United
States Holders are urged to consult their tax advisors regarding
the application of United States federal income tax withholding,
including eligibility for a withholding tax reduction or
exemption, and the refund procedure.
Except as otherwise provided in this Section 4, tenders of
shares pursuant to the Offer are irrevocable. Shares tendered
pursuant to the Offer may be withdrawn at any time before the
expiration date and, unless we have accepted tendered shares for
payment under the Offer, may also be withdrawn at any time after
5:00 p.m., New York City time, on May 1, 2007.
For a withdrawal to be effective, a notice of withdrawal must be
in written form and must be received in a timely manner by the
Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase. Any notice of withdrawal must specify
the name of the tendering stockholder; the number of shares to
be withdrawn; and the name of the registered holder of the
shares. If the certificates for shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then,
before the release of the certificates, the tendering
stockholder must also submit the serial numbers shown on the
particular certificates for shares to be withdrawn and the
signature(s) on the notice of withdrawal must be guaranteed by
an Eligible Institution (except in the case of shares tendered
for the account of an Eligible Institution). If shares have been
tendered pursuant to the procedure for book-entry transfer
described in Section 3, the notice of withdrawal also must
specify the name and the number of the account at the Book-Entry
Transfer Facility to be credited with the withdrawn shares and
must otherwise comply with the Book-Entry Transfer
Facilitys procedures.
We will determine all questions as to the form and validity,
including the time of receipt, of any notice of withdrawal, in
our sole discretion, which determination will be final and
binding on all parties. Neither we nor the Dealer Managers, the
Depositary, the Information Agent or any other person will be
obligated to give notice of any defects or irregularities in any
notice of withdrawal, nor will any of the foregoing incur
liability for failure to give any such notification. Withdrawals
may not be rescinded, and any shares properly withdrawn will be
deemed not properly tendered for purposes of the Offer. However,
withdrawn shares may be re-tendered before the expiration date
by again following one of the procedures described in
Section 3.
If we extend the Offer, are delayed in our purchase of shares or
are unable to purchase shares pursuant to the Offer for any
reason, then, without prejudice to our rights under the Offer,
the Depositary may, subject to applicable law, retain tendered
shares on our behalf, and the shares may not be withdrawn except
to the extent tendering stockholders are entitled to withdrawal
rights as described in this Section 4. Our reservation of
the right to delay payment for shares that we have accepted for
payment is limited by Exchange Act Rule 13e-4(f)(3), which
requires that we must pay the consideration offered or return
the shares tendered promptly after termination or withdrawal of
the Offer.
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If you are a participant in the 401(k) Plan, you may withdraw
the tender of any shares allocable to the units in your
individual 401(k) Plan account you have tendered at any time
before 4:00 p.m., New York City time, on Thursday,
March 29, 2007, unless we extend the Offer, in which case
you may withdraw the tender of shares allocable to the units in
your individual 401(k) Plan account until 4:00 p.m., New
York City time, on the day which is three business days prior to
the expiration of the Offer, as extended. Participants desiring
to withdraw their tender must follow the instructions set forth
in the Letter to Participants in Celanese Americas
Retirement Savings Plan sent to participants along with
this Offer.
|
|
5.
|
Purchase
of Shares and Payment of Purchase Price.
|
On the terms and subject to the conditions of the Offer,
promptly following the expiration date, we will:
|
|
|
|
|
determine the Final Purchase Price, taking into account the
number of shares tendered and the prices specified by tendering
stockholders; and
|
|
|
|
accept for payment and pay for (and thereby purchase) up to
11,279,243 shares (or such greater number of shares as we
may elect to purchase, subject to applicable law) properly
tendered at prices at or below the Final Purchase Price and not
properly withdrawn. We may purchase an additional amount of
shares not to exceed 2% of the outstanding shares (approximately
3,192,861 shares as of March 2, 2007) without
amending or extending the Offer.
|
For purposes of the Offer, we will be deemed to have accepted
for payment (and therefore purchased), subject to the odd
lot priority, proration and conditional tender provisions
of the Offer, shares that are properly tendered at or below the
Final Purchase Price and not properly withdrawn only when, as
and if we give oral or written notice to the Depositary of our
acceptance of the shares for payment pursuant to the Offer.
On the terms and subject to the conditions of the Offer,
promptly after the expiration date, we will accept for purchase
and pay a single per share purchase price for all of the shares
accepted for payment in accordance with the Offer. In all cases,
payment for shares tendered and accepted for payment in
accordance with the Offer will be made promptly, subject to
possible delay due to proration, but only after timely receipt
by the Depositary of:
|
|
|
|
|
certificates for shares or a timely confirmation of a book-entry
transfer of shares into the Depositarys account at the
Book-Entry Transfer Facility;
|
|
|
|
a properly completed and duly executed Letter of Transmittal (or
a manually signed facsimile of the Letter of Transmittal) or an
Agents Message in the case of book-entry transfer; and
|
|
|
|
any other documents required by the Letter of Transmittal.
|
We will pay for shares purchased pursuant to the Offer by
depositing the aggregate purchase price for the shares with the
Depositary, which will act as agent for tendering stockholders
for the purpose of receiving payment from us and transmitting
payment to the tendering stockholders. In the event of
proration, the Depositary will determine the proration factor
and pay for those tendered shares accepted for payment promptly
after the expiration date. Certificates for all shares tendered
and not purchased, including all shares tendered at prices in
excess of the Final Purchase Price and shares not purchased due
to proration or conditional tenders, will be returned, or, in
the case of shares tendered by book-entry transfer, will be
credited to the account maintained with the Book-Entry Transfer
Facility by the participant who delivered the shares, to the
tendering stockholder promptly after the expiration or
termination of the Offer at our expense.
Under no circumstances will interest be paid on the Final
Purchase Price for the shares, regardless of any delay in making
payment. In addition, if certain events occur, we may not be
obligated to purchase shares pursuant to the Offer. See
Section 7.
We will pay all stock transfer taxes, if any, payable on the
transfer to us of shares purchased pursuant to the Offer. If,
however, payment of the Final Purchase Price is to be made to,
or (in the circumstances permitted by the Offer) if unpurchased
shares are to be registered in the name of, any person other
than the registered holder, or if tendered certificates are
registered in the name of any person other than the person
signing the Letter of Transmittal, the amount of all stock
transfer taxes, if any (whether imposed on the registered holder
or the other person), payable on account of the transfer to the
person will be deducted from the Final Purchase Price unless
satisfactory evidence of the payment of the stock transfer
taxes, or exemption from payment of the stock transfer taxes, is
submitted. See Instruction 7 of the Letter of Transmittal.
19
|
|
6.
|
Conditional
Tender of Shares.
|
Subject to the exception for odd lot holders, in the
event of an over-subscription of the Offer, shares tendered at
or below the Final Purchase Price prior to the expiration date
will be subject to proration. See Section 1. As discussed
in Section 13, the number of shares to be purchased from a
particular stockholder may affect the tax treatment of the
purchase to the stockholder and the stockholders decision
whether to tender. Accordingly, a stockholder may tender shares
subject to the condition that a specified minimum number of the
stockholders shares tendered pursuant to a Letter of
Transmittal must be purchased if any shares tendered are
purchased. Any stockholder desiring to make a conditional tender
must so indicate in the box entitled Conditional
Tender in the Letter of Transmittal, and, if applicable,
in the Notice of Guaranteed Delivery.
We urge each
stockholder to consult with his or her own financial or tax
advisors with respect to the advisability of making a
conditional tender.
Any tendering stockholder wishing to make a conditional tender
must calculate and appropriately indicate the minimum number of
shares that must be purchased from that stockholder if any are
to be purchased. After the Offer expires, if more than
11,279,243 shares (or such greater number of shares as we
may elect to purchase, subject to applicable law) are properly
tendered and not properly withdrawn, so that we must prorate our
acceptance of and payment for tendered shares, we will calculate
a preliminary proration percentage based upon all shares
properly tendered, conditionally or unconditionally. If the
effect of this preliminary proration would be to reduce the
number of shares to be purchased from any stockholder below the
minimum number specified, the conditional tender will
automatically be regarded as withdrawn (except as provided in
the next paragraph). All shares tendered by a stockholder
subject to a conditional tender pursuant to the Letter of
Transmittal and regarded as withdrawn as a result of proration
will be returned promptly after the expiration date at our
expense.
After giving effect to these withdrawals, we will accept the
remaining shares properly tendered, conditionally or
unconditionally, on a pro rata basis, if necessary. If
conditional tenders would otherwise be regarded as withdrawn and
would cause the total number of shares to be purchased to fall
below 11,279,243 shares (or such greater number of shares
as we may elect to purchase, subject to applicable law) then, to
the extent feasible, we will select enough of the conditional
tenders that would otherwise have been deemed withdrawn to
permit us to purchase 11,279,243 shares (or such greater
number of shares as we may elect to purchase, subject to
applicable law). In selecting among the conditional tenders, we
will select by random lot, treating all tenders by a particular
taxpayer as a single lot, and will limit our purchase in each
case to the designated minimum number of shares to be purchased.
|
|
7.
|
Conditions
of the Offer.
|
The Offer is not conditioned on any minimum number of shares
being tendered. Notwithstanding any other provision of the
Offer, we will not be required to accept for payment, purchase
or pay for any shares tendered, and may terminate or amend the
Offer or may postpone the acceptance for payment of or the
payment for shares tendered, subject to Exchange Act
Rule 13e-4(f)(3),
which requires that we must pay the consideration offered or
return the shares tendered promptly after termination or
withdrawal of the Offer, if at any time on or after the
commencement of the Offer and prior to the expiration date any
of the following events have occurred (or are determined by us
to have occurred) that, in our reasonable judgment and
regardless of the circumstances giving rise to the event or
events (including any action or inaction by us), makes it
inadvisable to proceed with the Offer or with acceptance for
payment or payment for the shares in the Offer:
|
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|
|
|
there has been threatened, instituted or pending any action,
suit or proceeding by any government or governmental, regulatory
or administrative agency, authority or tribunal or by any other
person, domestic, foreign or supranational, before any court,
authority, agency or other tribunal that directly or indirectly:
|
|
|
|
|
|
challenges or seeks to make illegal, or to delay or otherwise
directly or indirectly to restrain, prohibit or otherwise affect
the consummation of the Offer, the acquisition of some or all of
the shares pursuant to the Offer or otherwise relates in any
manner to the Offer; or
|
|
|
|
in our reasonable judgment, could materially and adversely
affect the Companys and its subsidiaries business,
condition (financial or otherwise), income, operations or
prospects, taken as a whole, or otherwise materially impair our
ability to purchase some or all of the shares pursuant to the
Offer;
|
|
|
|
|
|
there has been any action threatened, pending or taken,
including any settlement, or any approval withheld, or any
statute, rule, regulation, judgment, order or injunction
threatened, invoked, proposed, sought, promulgated, enacted,
entered, amended, enforced or deemed to be applicable to the
Offer or us or any of our subsidiaries, including any
|
20
|
|
|
|
|
settlement, by any court, government or governmental, regulatory
or administrative authority, agency or tribunal, domestic,
foreign or supranational, that, in our reasonable judgment,
could directly or indirectly:
|
|
|
|
|
|
make the acceptance for payment of, or payment for, some or all
of the shares illegal or otherwise restrict or prohibit
consummation of the Offer;
|
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|
|
delay or restrict our ability, or render us unable, to accept
for payment or pay for some or all of the shares to be purchased
pursuant to the Offer; or
|
|
|
|
materially and adversely affect the Companys or its
subsidiaries or our affiliates business, condition
(financial or otherwise), income, operations or prospects;
|
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|
|
|
there has occurred any of the following:
|
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|
|
|
|
any general suspension of trading in, or limitation on prices
for, securities on any United States national securities
exchange or in the
over-the-counter
market;
|
|
|
|
the declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States, whether or
not mandatory;
|
|
|
|
a material change in United States or any other currency
exchange rates or a suspension of or limitation on the markets
therefor;
|
|
|
|
a decrease of more than 10% in the market price for shares of
the Common Stock or in the Dow Jones Industrial Average, the
Nasdaq Global Market Composite Index or Standard &
Poors Composite Index of 500 Industrial Companies measured
from the close of trading on March 2, 2007, the last
trading day prior to announcement of the Offer shall not have
occurred;
|
|
|
|
the commencement of a war, armed hostilities or other
international or national calamity on or after March 6,
2007, including, but not limited to, an act of terrorism;
|
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|
|
any material escalation of any war or armed hostilities which
had commenced prior to March 6, 2007;
|
|
|
|
any limitation, whether or not mandatory, by any governmental,
regulatory or administrative agency or authority on, or any
event that, in our reasonable judgment, could materially affect,
the extension of credit by banks or other lending institutions
in the United States;
|
|
|
|
any change in the general political, market, economic or
financial conditions, domestically or internationally, that is
reasonably likely to materially and adversely affect the
Companys business or the trading in the Companys
shares; or
|
|
|
|
in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening
thereof;
|
|
|
|
|
|
a tender or exchange offer for any or all of the Companys
shares (other than this Offer), or any merger, acquisition,
business combination or other similar transaction with or
involving the Company or any of its subsidiaries, has been
proposed, announced or made by any person or has been publicly
disclosed;
|
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|
|
we learn that:
|
|
|
|
|
|
any entity, group (as that term is used in
Section 13(d)(3) of the Exchange Act) or person has
acquired or proposes to acquire beneficial ownership of more
than 5% of the Companys outstanding shares, whether
through the acquisition of stock, the formation of a group, the
grant of any option or right, or otherwise (other than as and to
the extent disclosed in a Schedule 13D or Schedule 13G
filed with the SEC on or before March 2, 2007);
|
|
|
|
any entity, group or person who has filed a Schedule 13D or
Schedule 13G with the SEC on or before March 2, 2007,
has acquired or proposes to acquire, whether through the
acquisition of stock, the formation of a group, the grant of any
option or right, or otherwise (other than by virtue of the Offer
made hereby), beneficial ownership of an additional 2% or more
of the Companys outstanding shares;
|
|
|
|
any person, entity or group has filed a Notification and Report
Form under the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, reflecting
an intent to acquire the Company or any shares of Common Stock,
or has
|
21
|
|
|
|
|
made a public announcement reflecting an intent to acquire the
Company or any of its subsidiaries or any of its or their
respective assets or securities;
|
|
|
|
|
|
any change or changes have occurred or are threatened in the
Companys or its subsidiaries or affiliates
business, condition (financial or otherwise), properties,
assets, income, operations or prospects that, in our reasonable
judgment, has or could have a material adverse effect on the
Company or any of its subsidiaries or affiliates or the benefits
of the Offer to us;
|
|
|
|
any approval, permit, authorization, favorable review or consent
of any governmental entity required to be obtained in connection
with the Offer shall not have been obtained on terms
satisfactory to us in our reasonable discretion; or
|
|
|
|
we determine that the consummation of the Offer and the purchase
of the shares may (1) cause the Common Stock to be held of
record by less than 300 persons, or (2) cause the Common
Stock to be delisted from the New York Stock Exchange or to be
eligible for deregistration under the Exchange Act.
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|
|
|
|
|
Neither the Company nor its advisors shall have determined,
whether due to the amount of shares tendered or to a change in
circumstances, that the Companys ability to effect or
realize benefits from the Reorganization may be adversely
impacted.
|
|
|
|
Neither the Company nor its advisors shall have determined that
the Offer violates the Companys financing arrangements
then in effect.
|
The conditions referred to above are for our sole benefit and
may be asserted by us regardless of the circumstances giving
rise to any such condition, and may be waived by us, in whole or
in part, at any time and from time to time in our reasonable
discretion. Our failure at any time to exercise any of the
foregoing rights will not be deemed a waiver of any right, and
each such right will be deemed an ongoing right that may be
asserted at any time and from time to time. In certain
circumstances, if we waive any of the conditions described
above, we may be required to extend the expiration date. Any
determination by us concerning the events described above will
be final and binding on all parties. All conditions will be
satisfied or waived on or prior to the expiration date. See
Section 14.
|
|
8.
|
Price
Range of Shares; Dividends.
|
The Companys Common Stock is listed and traded on the New
York Stock Exchange under the trading symbol CE. The
following table sets forth, for the fiscal quarters indicated,
the high and low per share sales prices of the Common Stock on
the New York Stock Exchange.
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High
|
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Low
|
|
|
2005
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
18.65
|
|
|
$
|
15.10
|
|
Second Quarter
|
|
|
18.16
|
|
|
|
13.54
|
|
Third Quarter
|
|
|
20.06
|
|
|
|
15.88
|
|
Fourth Quarter
|
|
|
19.76
|
|
|
|
15.58
|
|
2006
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
22.00
|
|
|
$
|
18.82
|
|
Second Quarter
|
|
|
22.75
|
|
|
|
18.50
|
|
Third Quarter
|
|
|
20.70
|
|
|
|
16.80
|
|
Fourth Quarter
|
|
|
26.33
|
|
|
|
17.45
|
|
2007
|
|
|
|
|
|
|
|
|
First Quarter (through
March 2, 2007)
|
|
$
|
30.10
|
|
|
$
|
24.50
|
|
Pursuant to the policy adopted by the Companys Board of
Directors in July 2005, we paid quarterly dividends of
$0.04 per share on February 1, 2006, May 1, 2006,
August 1, 2006, November 1, 2006 and February 1,
2007. Based on the number of outstanding shares of the Common
Stock, the anticipated annual cash dividend is approximately
$26 million. However, there is no assurance that sufficient
cash will be available in the future to pay such dividends.
Further, such dividends payable to holders of the Common Stock
cannot be declared or paid nor can any funds be set aside for
the payment thereof, unless the Company has
22
paid or set aside funds for the payment of all accumulated and
unpaid dividends with respect to the shares of the
Companys preferred stock. The Companys Board of
Directors may, at any time, modify or revoke our dividend policy
on the Common Stock. Please refer to the section entitled
Dividend Policy in the Companys Annual Report
on
Form 10-K
for the fiscal year ended December 31, 2006 for information
on its dividend policy.
On March 2, 2007, the last full trading day before the
announcement of the Offer, the last reported sale price for
shares of Common Stock on the New York Stock Exchange was $28.33
per share.
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET
QUOTATIONS FOR OUR COMMON STOCK.
|
|
9.
|
Source
and Amount of Funds.
|
Assuming we purchase 11,279,243 shares in the Offer and the
additional 1,835,511 shares from Blackstone at the maximum
specified purchase price of $30.50 per share, approximately
$400 million will be required to purchase such shares. We
intend to use working capital, including cash on hand, to
purchase shares in the Offer and to pay all fees and expenses
applicable to the Offer.
|
|
10.
|
Certain
Information Concerning Us.
|
The Company is subject to the informational filing requirements
of the Exchange Act which obligates it to file reports,
statements and other information with the SEC relating to our
business, financial condition and other matters. Information, as
of particular dates, concerning its directors and officers,
their remuneration, options granted to them, the principal
holders of our securities and any material interest of these
persons in transactions with the Company is required to be
disclosed in proxy statements distributed to the Companys
stockholders and filed with the SEC. As required by Exchange Act
Rule 13e-4(c)(2), we have also filed with the SEC an Issuer
Tender Offer Statement on Schedule TO (the
Schedule TO), which includes additional information
relating to the Offer.
These reports, statements and other information can be inspected
and copied at the public reference facilities maintained by the
SEC at 100 F Street, N.E., Washington, D.C. 20549.
Copies of this material may also be obtained by mail, upon
payment of the SECs customary charges, from the Public
Reference Section of the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. The SEC also maintains a web site
on the Internet at http://www.sec.gov that contains reports,
proxy and information statements and other information regarding
registrants that file electronically with the SEC, including the
Schedule TO and documents incorporated by reference. You
may obtain information about the Public Reference Room by
calling the SEC at
1-800-SEC-0330.
These reports, proxy statements and other information concerning
us also can be inspected at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
Incorporation by Reference.
The rules of the
SEC allow us to incorporate by reference information
into this document, which means that we can disclose important
information to you by referring you to another document filed
separately with the SEC. We incorporate by reference each of the
following documents:
|
|
|
SEC Filings
|
|
Period or Date Filed
|
|
Annual Report on
Form 10-K
|
|
Year ended December 31, 2006
|
Current Reports on
Form 8-K
|
|
January 8, 2007,
February 9, 2007 and March 5, 2007
|
You can obtain any of the documents incorporated by reference in
this document from us or from the SECs web site at the
address described above. Documents incorporated by reference are
available from the Company without charge, excluding any
exhibits to those documents, at the Companys principal
executive office located at 1601 West LBJ Freeway, Dallas,
Texas,
75234-6034,
(972) 443-4000.
Please be sure to include your complete name and address in your
request. If you request any incorporated documents, the Company
will mail them to you by first class mail, or another equally
prompt means, within one business day after receiving your
request.
The business address of CIH is 9, rue Sainte Zithe, L-2763
Luxembourg and its telephone number is +352-268-90120.
|
|
11.
|
Interests
of Directors and Executive Officers; Transactions and
Arrangements Concerning the Shares.
|
Beneficial Ownership.
As of March 2,
2007, the Company had 159,643,063 issued and outstanding shares
of Common Stock and 9,600,000 shares of 4.25% convertible
perpetual preferred stock (Preferred Stock). The
11,279,243 shares that we are offering to purchase
represent approximately 7% of the shares outstanding on
March 2, 2007.
23
As of March 2, 2007, the Companys directors and
executive officers as a group beneficially owned
5,409,454 shares or approximately 3.41% of the total
outstanding shares of the Common Stock plus the shares issuable
upon the exercise of stock options held by the Companys
directors and executive officers that are exercisable within
60 days after the date of this Offer to Purchase.
Based on the shares of Common Stock issued and outstanding, the
following table sets forth the (i) beneficial ownership, as
of March 2, 2007, of each executive officer and director of
the Company, each person controlling the Company and each
executive officer and director of any corporation or other
person ultimately in control of the Company and
(ii) assuming we purchase 11,279,243 shares of Common
Stock in the Offer and 1,835,511 shares of Common Stock
from Blackstone following the expiration of the Offer, the
percentage beneficially owned by such persons after consummation
of the Offer.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 2, 2007
|
|
|
Percentage Owned
|
|
|
|
Number of Shares of
|
|
|
|
|
|
After Tender Offer
|
|
|
|
Common Stock*
|
|
|
Percent of
|
|
|
(with above stated
|
|
Name
|
|
Beneficially Owned(1)
|
|
|
Class(1)
|
|
|
assumptions)
|
|
|
David N. Weidman(2)
|
|
|
2,729,445
|
|
|
|
1.71
|
%
|
|
|
1.86
|
%
|
John J. Gallagher III(2)
|
|
|
350,900
|
|
|
|
**
|
|
|
|
**
|
|
Dr. Lyndon E. Cole(2)
|
|
|
1,067,061
|
|
|
|
**
|
|
|
|
**
|
|
Curtis S. Shaw(2)
|
|
|
287,100
|
|
|
|
**
|
|
|
|
**
|
|
Chinh E. Chu(3)
|
|
|
|
|
|
|
**
|
|
|
|
**
|
|
James E. Barlett(2)
|
|
|
27,065
|
|
|
|
**
|
|
|
|
**
|
|
David F. Hoffmeister(2)
|
|
|
|
|
|
|
**
|
|
|
|
**
|
|
Benjamin J. Jenkins(3)
|
|
|
|
|
|
|
**
|
|
|
|
**
|
|
Martin G. McGuinn(2)
|
|
|
15,000
|
|
|
|
**
|
|
|
|
**
|
|
Anjan Mukherjee(3)
|
|
|
|
|
|
|
**
|
|
|
|
**
|
|
Paul H. ONeill(2)
|
|
|
22,605
|
|
|
|
**
|
|
|
|
**
|
|
James A. Quella(3)
|
|
|
|
|
|
|
**
|
|
|
|
**
|
|
Daniel S. Sanders(2)
|
|
|
32,065
|
|
|
|
**
|
|
|
|
**
|
|
John K. Wulff(2)
|
|
|
|
|
|
|
**
|
|
|
|
**
|
|
All directors and officers as a
group
|
|
|
5,409,454
|
|
|
|
3.39
|
%
|
|
|
3.69
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Affiliates of The Blackstone Group
L.P.(4)
|
|
|
22,435,610
|
|
|
|
14.05
|
%
|
|
|
15.31
|
%
|
Stephen A. Schwarzman(4)
|
|
|
22,435,610
|
|
|
|
14.05
|
%
|
|
|
15.31
|
%
|
Peter G. Peterson(4)
|
|
|
22,435,610
|
|
|
|
14.05
|
%
|
|
|
15.31
|
%
|
|
|
|
*
|
|
The Company has 9,600,000 shares of issued and outstanding
Preferred Stock which are convertible into shares of Common
Stock at any time at a conversion rate of 1.25 shares of
Common Stock for each share of Preferred Stock, subject to
adjustments.
|
|
**
|
|
Less than 1 percent of shares of Common Stock outstanding
(excluding, in the case of all Directors and executive officers
individually and as a group, shares beneficially owned by the
affiliates of Blackstone and BA Capital Investors Sidecar Fund,
LP).
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(1)
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For purposes of this table, a person or group of persons is
deemed to have beneficial ownership of any shares as
of a given date which such person has the right to acquire
within 60 days after such date. For purposes of computing
the percentage of outstanding shares held by each person or
group of persons named above on a given date, any security which
such person or persons has the right to acquire within
60 days after such date is deemed to be outstanding, but is
not deemed to be outstanding for the purpose of computing the
percentage ownership of any other person.
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(2)
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The address for each of Messrs. Weidman, Gallagher, Shaw,
Cole, Barlett, Hoffmeister, ONeill, Sanders, McGuinn and
Wulff is c/o Celanese Corporation, 1601 West LBJ
Freeway, Dallas, Texas 75234.
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(3)
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Mr. Chu is a Senior Managing Director, Mr. Quella is
Senior Managing Director and Senior Operating Partner,
Mr. Jenkins is Senior Managing Director and
Mr. Mukherjee is a principal of The Blackstone Group L.P.
Messrs. Chu, Quella, Jenkins and Mukherjee disclaim
beneficial ownership of the shares held by affiliates of The
Blackstone Group L.P. The address for each of Messrs. Chu,
Quella, Jenkins and Mukherjee is c/o The Blackstone Group
L.P., 345 Park Avenue, New York, NY 10154.
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(4)
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Includes shares of Common Stock of the Company owned by
Blackstone Capital Partners (Cayman) Ltd. 1
(Cayman 1), Blackstone Capital Partners
(Cayman) Ltd. 2 (Cayman 2), and Blackstone Capital
Partners (Cayman) Ltd. 3 (Cayman 3 and collectively
with Cayman 1 and Cayman 2, the Cayman
Entities). Blackstone Capital Partners (Cayman) IV LP
(BCP IV) owns 100% of Cayman 1. Blackstone Family
Investment Partnership (Cayman) IV-A LP (BFIP) and
Blackstone Capital Partners (Cayman) IV-A LP (BCP
IV-A) collectively own 100% of Cayman 2. Blackstone
Chemical Coinvest Partners (Cayman) LP (BCCP and,
collectively with BCP IV, BFIP and BCP IV-A, the
Blackstone Funds) owns 100% of Cayman 3. Blackstone
Management Associates (Cayman) IV LP (BMA) is the
general partner of each of the Blackstone Funds. Blackstone LR
Associates (Cayman) IV Ltd. (BLRA) is the general
partner of BMA and may, therefore, be deemed to have shared
voting and investment power over shares of the Common Stock.
Mr. Chu, who serves as a Director of the Company and is a
member of the Supervisory Board of Celanese AG, is a
non-controlling shareholder of BLRA and disclaims any beneficial
ownership of shares of the Common Stock beneficially owned by
BLRA. Messrs. Peter G. Peterson and Stephen A. Schwarzman
are directors and controlling persons of BLRA and as such may be
deemed to share beneficial ownership of shares of the Common
Stock controlled by BLRA. Each of BLRA and Messrs. Peterson
and Schwarzman disclaims beneficial ownership of such shares. On
January 25, 2005, the Company granted to Blackstone
Management Partners IV LLC (in lieu of granting such
options to directors of the Company who are employees of
Blackstone in connection with the Companys regular
director compensation arrangements) options to acquire an
aggregate of 123,110 shares of Common Stock, of which
options to acquire 92,333 shares are currently exercisable.
Messrs. Peterson and Schwarzman are controlling persons of
Blackstone Management Partners IV LLC and accordingly may
be deemed to beneficially own the shares subject to such
options. The exercise price for such options is $16.00 per
share. The address of each of the Cayman Entities, the
Blackstone Funds, BMA and BLRA is c/o Walkers, P.O.
Box 265 GT. George Town. Grand Cayman. The address of each
of Messrs. Peterson and Schwarzman is c/o The
Blackstone Group L.P., 345 Park Avenue, New York, NY 10154.
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Agreements, Arrangements or
Understandings.
The Companys directors and
executive officers and CIHs managers have advised us that
they do not intend to tender their shares in the Offer.
Securities Transactions.
Based on our records
and on information provided to us by the Companys
directors, executive officers, affiliates and subsidiaries, none
of the Company or any of its directors, executive officers,
affiliates or subsidiaries, CIH or any of its managers, or, to
the best of our knowledge, any of the Companys
subsidiaries directors or executive officers, has effected
any transactions involving shares of Common Stock during the
60 days prior to March 6, 2007, except as provided
below.
Agreement to Purchase Blackstone Shares.
We
entered into a stock purchase agreement with Blackstone dated
March 2, 2007 (the Stock Purchase Agreement),
prior to the first public announcement of the Offer, whereby we
will purchase shares from Blackstone on the eleventh business
day following the expiration of the Offer. We have agreed to
purchase from Blackstone up to 1,835,511 shares of Common
Stock (which number of shares purchased may be proportionately
increased or decreased if the number of shares purchased in the
Offer is increased or decreased, respectively) at the Final
Purchase Price.
The percentage of Blackstones total holdings of Common
Stock that we will purchase pursuant to the Stock Purchase
Agreement will be equal to the percentage of the outstanding
Common Stock (other than that held by Blackstone) that we are
seeking in the Offer. If we increase or decrease the number of
shares being purchased in the Offer (any such increase or
decrease, the TO Share Adjustment), the aggregate
number of shares of Common Stock to be purchased by us from
Blackstone will be increased or decreased, respectively, by an
amount equal to the TO Share Adjustment
multiplied by
a
fraction, the numerator of which is 22,343,277 and the
denominator of which is 137,299,786 (such fraction represents
the percentage of the outstanding shares of Common Stock held of
record by Blackstone divided by the total number of outstanding
shares of Common Stock held of record by all stockholders other
than Blackstone).
The per share price for the shares purchased from Blackstone
will be the same as the per share price paid for shares
purchased in the Offer. Blackstone owns of record
22,343,277 shares, which constitutes approximately 14% of
the issued and outstanding Common Stock. Pursuant to the Stock
Purchase Agreement, Blackstone has agreed not to tender any
shares in the Offer. The preceding summary of the Stock Purchase
Agreement is qualified in its entirety by the terms of the
actual Stock Purchase Agreement, which is attached as
Exhibit (d)(1) to the Schedule TO.
Blackstone representatives occupy four out of the eleven seats
on the Board of Directors of the Company and abstained from
voting to approve this Offer.
25
Equity Compensation Plans.
The Celanese
Corporation 2004 Stock Incentive Plan, adopted in December 2004,
forms the basis of the equity-based incentive plan for key
employees, directors or consultants of outstanding ability. The
purpose of the incentive programs under this plan is to recruit
and retain such employees, directors or officers, and to
motivate them to exert their best efforts on our behalf by
providing compensation and incentives through the granting of
awards, including stock options, stock appreciation rights, or
other stock-based awards.
The foregoing description of the Companys equity-based
plan is qualified in its entirety by reference to the text of
the plan, a copy of which has been filed with the SEC.
Except as otherwise described or incorporated by reference
herein, neither the Company nor, to the best of our knowledge,
CIH, any of CIHs managers, or any of our affiliates,
directors or executive officers, is a party to any contract,
agreement, arrangement, understanding or relationship with any
other person with respect to any of our securities.
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12.
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Certain
Legal Matters; Regulatory Approvals.
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We are not aware of any license or regulatory permit that is
reasonably likely to be material to our business that might be
adversely affected by our acquisition of shares as contemplated
in the Offer or of any approval or other action by any
government or governmental, administrative or regulatory
authority or agency, domestic, foreign or supranational, that
would be required for our acquisition or ownership of shares as
contemplated by the Offer. Should any approval or other action
be required, we presently contemplate that we will seek that
approval or other action, but we have no current intention to
delay the purchase of shares tendered pursuant to the Offer
pending the outcome of any such matter, subject to our right to
decline to purchase shares if any of the conditions in
Section 7 have not been satisfied or waived. We cannot
predict whether we would be required to delay the acceptance for
payment of or payment for shares tendered pursuant to the Offer
pending the outcome of any such matter. We cannot assure you
that any approval or other action, if needed, would be obtained
or would be obtained without substantial cost or conditions or
that the failure to obtain the approval or other action might
not result in adverse consequences to our business and financial
condition. If certain types of adverse actions are taken with
respect to the matters discussed above, or certain approvals,
consents, licenses or permits identified above are not obtained,
we can decline to accept for payment or pay for any shares
tendered. See Section 7.
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13.
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Certain
United States Federal Income Tax Consequences.
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The following is a summary of certain United States federal
income tax consequences of the Offer to stockholders whose
shares of the Common Stock are properly tendered and accepted
for payment pursuant to the Offer. Those stockholders who do not
participate in the Offer should not have any United States
federal income tax consequences as a result of the exchange.
This summary is based upon the Internal Revenue Code of 1986, as
amended (the Code), existing and proposed United
States Treasury Regulations promulgated under the Code,
published rulings, administrative pronouncements and judicial
decisions, all as of the date hereof and any changes to which
could affect the tax consequences described in this Offer to
Purchase (possibly on a retroactive basis). This summary
addresses only shares of the Common Stock held as capital
assets. It does not address all of the tax consequences that may
be relevant to particular stockholders because of their personal
circumstances (including, without limitation, certain financial
institutions, brokers, dealers or traders in securities or
commodities, insurance companies, S corporations,
partnerships (including entities treated as partnerships for
United States federal income tax purposes), expatriates,
tax-exempt organizations, tax-qualified retirement plans,
persons who are subject to alternative minimum tax, persons who
hold shares of the Common Stock as a position in a
straddle or as part of a hedging,
conversion or integrated transaction, or
Unites States Holders (as defined below) that have a functional
currency other than the United States dollar). This summary also
does not apply with respect to shares of the Common Stock
acquired upon the exercise of stock options or otherwise as
compensation. This summary also does not address tax
considerations arising under any state, local or foreign laws,
or under United States federal estate or gift tax laws.
In addition, if a partnership (including any entity treated as a
partnership for United States federal income tax purposes) is a
stockholder, the tax treatment of a partner in the partnership
will generally depend upon the status of the partner and the
activities of the partnership. A stockholder that is a
partnership, and partners in such partnership, should consult
their own tax advisors regarding the tax consequences of
participating in the Offer. You are urged to consult your tax
advisor as to the particular consequences to you of
participating in the Offer.
26
For purposes of this summary, a United States Holder
is a beneficial owner of shares of the Common Stock that for
United States federal income tax purposes is:
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a citizen or resident of the United States;
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a corporation (or other entity taxable as a corporation for
United States federal income tax purposes) created or organized
in or under the laws of the United States or any State or the
District of Columbia;
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an estate the income of which is subject to United States
federal income taxation regardless of its source; or
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a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one
or more United States persons has the authority to control all
substantial decisions of the trust, or certain other trusts
considered United States Holders for United States federal
income tax purposes.
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A
Non-United
States Holder is a beneficial owner of shares of the
Common Stock other than a United States Holder or an entity or
arrangement treated as a partnership for United States federal
income tax purposes.
Consequences
of the Offer to United States Holders.
Characterization of the Purchase Distribution vs.
Sale Treatment.
Our purchase of shares of the
Common Stock from a United States Holder pursuant to the Offer
will be a taxable transaction for United States federal income
tax purposes. As a consequence of any such purchase, a United
States Holder will, depending on the United States Holders
particular circumstances, be treated either as having sold the
United States Holders shares of the Common Stock or as
having received a distribution in respect of such United States
Holders shares of the Common Stock. The purchase of shares
of the Common Stock pursuant to the Offer will be treated as a
sale if a United States Holder meets any of the three tests
discussed below (the Section 302 tests). The
purchase will be treated as a distribution if the United States
Holder does not satisfy at least one of the Section 302
tests.
We cannot predict whether any particular United States Holder
will be subject to sale or distribution treatment. Each United
States Holder should be aware that because proration may occur
in the Offer, even if all the shares of the Common Stock
actually and constructively owned by a United States Holder are
tendered pursuant to the Offer, fewer than all of such shares of
the Common Stock may be purchased by us. Consequently, we cannot
assure you that a sufficient number of any particular United
States Holders shares of the Common Stock will be
purchased to ensure that this purchase will be treated as a sale
or exchange, rather than as a distribution, for United States
federal income tax purposes pursuant to the rules discussed
below. Accordingly, a tendering United States Holder may choose
to submit a conditional tender under the procedures
described in Section 6, which allows the United States
Holder to tender shares of the Common Stock subject to the
condition that a specified minimum number of the United States
Holders shares of the Common Stock must be purchased by us
if any such shares of the Common Stock so tendered are purchased.
A United States Holder that satisfies any of the
Section 302 tests explained below will be treated as having
sold the shares of the Common Stock purchased by us pursuant to
the Offer and will generally recognize capital gain or loss in
an amount equal to the difference between the amount of cash
received pursuant to the Offer and the United States
Holders tax basis in such shares of the Common Stock. This
capital gain or loss will be long-term capital gain or loss if
the United States Holder held the shares of the Common Stock for
more than one year as of the date of our purchase pursuant to
the Offer. Currently the maximum long-term capital gain rate for
individual United States Holders is 15%. Certain limitations
apply to the deductibility of capital losses by United States
Holders. A United States Holder must calculate gain or loss
separately for each block of shares of the Common Stock
(generally, shares of the Common Stock acquired at the same cost
in a single transaction) that we purchase from a United States
Holder pursuant to the Offer. A United States Holder may be able
to designate which blocks of shares of the Common Stock it
wishes to tender in the Offer if less than all of its shares of
the Common Stock are tendered in the Offer, and the order in
which different blocks will be purchased by us in the event of
proration in the Offer.
If a United States Holder does not satisfy any of the
Section 302 tests explained below, the full amount received
by the United States Holder with respect to our purchase of
shares of the Common Stock under the Offer will be treated as a
distribution to the United States Holder with respect to the
United States Holders shares of the Common Stock. This
distribution will be treated as a dividend to the United States
Holder to the extent of the United States Holders share of
the current and accumulated earnings and profits of CIH, the
Company and any other applicable entities, as determined under
United States federal income tax principles. Such a dividend
would be includible in the United States Holders gross
income without reduction for the tax
27
basis of the shares of the Common Stock exchanged, and no
current loss would be recognized. Currently, qualified
dividend income is taxable at a maximum rate for
individual United States Holders of 15%, which is the same as
the maximum tax rate for long-term capital gains, if certain
holding period and other requirements are met. We believe that
any such dividend should constitute qualified dividend
income for purposes of the Code. Although we believe that
the total amount of current and accumulated earnings and profits
of CIH, the Company and any other applicable entities will be
less than the aggregate amount that we will pay for tendered
shares of the Common Stock, we will be unable to determine what
portion, if any, of the amount that a United States Holder
receives will constitute a dividend for United States federal
income tax purposes. To the extent that the amount received by a
United States Holder exceeds the United States Holders
share of the current and accumulated earnings and profits of
CIH, the Company and any other applicable entities, the excess
first will be treated as a tax-free return of capital to the
extent, generally, of the United States Holders tax basis
in its shares of the Common Stock and any remainder will be
treated as capital gain from the sale of shares of the Common
Stock. To the extent that a purchase of a United States
Holders shares of the Common Stock by us in the Offer is
treated as the receipt of a dividend, the United States
Holders remaining adjusted tax basis (after the adjustment
as described in the preceding sentence) in the purchased shares
of the Common Stock will be added to any shares of the Common
Stock retained by the United States Holder, subject to certain
adjustments in the case of a corporate stockholder.
To the extent that a corporate United States Holder is treated
as receiving a dividend, as described above, it may be eligible
for a dividends received deduction (subject to applicable
limitations). In addition, any amount received by a corporate
United States Holder that is treated as a dividend may
constitute an extraordinary dividend under
Section 1059 of the Code, thereby resulting in a reduction
of tax basis or possible gain recognition in an amount equal to
the non-taxed portion of the dividend. Corporate United States
Holders should consult their own tax advisors as to the
application of Section 1059 of the Code to the Offer and
the tax consequences of dividend treatment of the purchase of
shares of the Common Stock pursuant to this Offer in their
particular circumstances.
Section 302 Tests Determination of Sale or
Distribution Treatment.
Our purchase of shares of
the Common Stock pursuant to the Offer will be treated as a sale
of the shares of the Common Stock by a United States Holder if
any of the following Section 302 tests is satisfied:
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as a result of the purchase, there is a complete
redemption of the United States Holders equity
interest in the Company;
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as a result of the purchase, there is a substantially
disproportionate reduction in the United States
Holders equity interest in the Company; or
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the receipt of cash by the United States Holder is not
essentially equivalent to a dividend.
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As indicated above, if none of these tests is met with respect
to a particular United States Holder, then our purchase of
shares of the Common Stock pursuant to the Offer will be treated
as a distribution. In applying the Section 302 tests, the
constructive ownership rules of Section 318 of the Code
generally apply. As a result, a United States Holder is treated
as owning not only shares of the Common Stock actually owned by
such holder but also shares of the Common Stock actually (and in
some cases constructively) owned by certain related entities and
individuals. Under the constructive ownership rules, a United
States Holder will be considered to own shares of the Common
Stock owned, directly or indirectly, by certain members of the
holders family and certain entities (such as corporations,
partnerships, trusts and estates) in which the United States
Holder has an equity interest, as well as certain shares of the
Common Stock which the United States Holder has an option to
acquire.
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Complete Redemption.
The purchase of shares of
the Common Stock pursuant to the Offer will result in a
complete redemption of a United States Holders
equity interest in the Company, if, immediately after such
purchase, such holder owns, actually and constructively, no
shares of the Common Stock. In applying the complete
redemption test, a United States Holder may be able to
waive the application of constructive ownership through the
family attribution rules, provided that such holder complies
with the provisions of Section 302(c) of the Code and
applicable Treasury Regulations. A United States Holder wishing
to satisfy the complete redemption test through
satisfaction of the special conditions set forth in
Section 302(c) of the Code should consult their tax
advisors concerning the mechanics and desirability of those
conditions. A United States Holder who holds options to acquire
shares of the Common Stock will be treated as the constructive
owner of such shares of the Common Stock, and therefore will not
be eligible for complete redemption treatment, even
if all of such Holders actual shares of the Common Stock
are sold in the transaction.
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Substantially Disproportionate.
In general,
our purchase of a United States Holders shares of the
Common Stock pursuant to the Offer will be substantially
disproportionate as to a United States Holder if,
immediately after the purchase, the percentage of the
outstanding shares of the Common Stock that the United States
Holder actually and constructively owns (including shares of the
Common Stock constructively owned as a result of the ownership
of options) is less than 80% of the percentage of the
outstanding shares of the Common Stock actually and
constructively owned by the United States Holder immediately
before the purchase.
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Not Essentially Equivalent to a Dividend.
Our
purchase of a United States Holders shares of the Common
Stock pursuant to the Offer will be treated as not
essentially equivalent to a dividend if it results in a
meaningful reduction in the United States
Holders proportionate interest in the Company, given the
United States Holders particular facts and circumstances.
The IRS has indicated in a published ruling that even a small
reduction in the percentage interest of a stockholder whose
relative stock interest in a publicly held corporation is
minimal and who exercises no control over corporate affairs
should constitute a meaningful reduction. A United
States Holder who intends to qualify for sale treatment by
demonstrating that the proceeds received from us are not
essentially equivalent to a dividend is strongly urged to
consult its tax advisor because this test will be met only if
the reduction in such holders proportionate interest in
the Company is meaningful given the particular facts
and circumstances of the holder in the context of the Offer. In
particular, depending on the total number of shares of the
Common Stock purchased pursuant to the Offer, it is possible
that a tendering stockholders percentage interest in the
Company (including any interest attributable to shares of the
Common Stock constructively owned by the stockholder as a result
of the ownership of options) could increase even though the
total number of shares of the Common Stock held by such
stockholder decreases.
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If a United States Holder sells shares of the Common Stock to
persons other than us, gain or loss recognized on such sales
will be capital gain or loss and will be long-term capital gain
or loss if the holder held the shares of the Common Stock for
more than one year at the date of the sale. If such sale occurs
at or about the time such holder also sells shares of the Common
Stock pursuant to the Offer, and the various sales effected by
the United States Holder are part of an overall plan to reduce
or terminate such holders proportionate interest in the
Company, then the sales to persons other than us may, for United
States federal income tax purposes, be integrated with the
United States Holders exchange of shares of the Common
Stock pursuant to the Offer and, if integrated, should be taken
into account in determining whether such holder satisfies any of
the Section 302 tests with respect to shares of our Common
Stock sold to us.
Consequences of the Offer to
Non-United
States Holders of Shares.
The United States
federal income tax treatment of our purchase of shares of the
Common Stock from a
Non-United
States Holder pursuant to the Offer will depend on whether such
holder is treated, based on the
Non-United
States Holders particular circumstances, as having sold
the tendered shares of the Common Stock or as having received a
distribution in respect of such
Non-United
States Holders shares of the Common Stock. The appropriate
treatment of the purchase of shares of the Common Stock will be
determined in the manner described above with respect to the
United States federal income tax treatment of a purchase of
shares of the Common Stock pursuant to the Offer in the case of
United States Holders (see Consequences of the Offer to
United States Holders Section 302
Tests Determination of Sale or Distribution
Treatment.).
A
Non-United
States Holder that satisfies any of the Section 302 tests
explained above will be treated as having sold the shares of the
Common Stock purchased by us pursuant to the Offer. A
Non-United
States Holder will generally not be subject to United States
federal income tax (and would be eligible to obtain a refund of
any amounts withheld as described below) on gain recognized on a
sale of shares of the Common Stock unless any one or more of the
following is true:
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the gain is effectively connected with a trade or business of
the
Non-United
States Holder in the United States and, if certain tax treaties
apply, is attributable to a permanent establishment in the
United States maintained by such holder;
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in the case of an individual
Non-United
States Holder who holds the stock as a capital asset, the
individual is present in the United States for 183 or more days
in the taxable year of the disposition and certain other
conditions are met; or
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in the case of a
Non-United
States Holder who owns or has owned, directly or indirectly,
during the relevant statutory period more than 5% of the Common
Stock, we are or have been a United States real property
holding corporation and certain other requirements are met.
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We do not believe that we have been or currently are a
United States real property holding corporation.
Individual
Non-United
States Holders who are treated, for United States federal income
tax purposes, as having sold their shares of the Common Stock to
us pursuant to the Offer and that are present in the United
States for 183 days or more during the year will be
29
taxed on their gains from sale of shares of the Common Stock,
net of applicable United States gains and losses from sale or
exchanges of other capital assets incurred during the year, at a
flat rate of 30%. Other
Non-United
States Holders who are treated as having sold their shares of
the Common Stock to us pursuant to the Offer and that are
subject to United States federal income tax on such sale (as
described above) generally will be taxed on such disposition in
the same manner in which a United States Holder would be taxed.
If a
Non-United
States Holder does not satisfy any of the Section 302 tests
explained above, the full amount received by the
Non-United
States Holder with respect to our purchase of shares of the
Common Stock under the Offer will be treated as a distribution
to the
Non-United
States Holder with respect to the
Non-United
States Holders shares of the Common Stock. The treatment,
for United States federal income tax purposes, of such
distribution as a dividend, a tax-free return of capital, or as
a capital gain from the sale of shares of the Common Stock will
be determined in the manner described above with respect to the
United States federal income tax treatment of a purchase of
shares of the Common Stock pursuant to the Offer in the case of
United States Holders (see Consequences of the Offer to
United States Holders Characterization of the
Purchase Distribution vs. Sale Treatment.). As
described more fully below, to the extent amounts received by a
Non-United
States Holder are treated as a dividend, such
Non-United
States Holder will be subject to withholding.
Withholding for
Non-United
States Holders.
Because, as described above, we
cannot predict whether any particular stockholder will be
subject to sale or distribution treatment, the Depositary
generally will treat the cash received by a
Non-United
States Holder participating in the Offer as a dividend
distribution from the Company. Accordingly, the Depositary
generally will withhold United States federal income tax equal
to 30% of the gross proceeds payable to the
Non-United
States Holder or his or her agent, unless (i) an exemption
from, or a reduced rate of, withholding tax is available under a
tax treaty or such gross proceeds are effectively connected with
the conduct of a trade or business of the
Non-United
States Holder within the United States and (ii) the
stockholder so certifies on the appropriate IRS
Form W-8
as described below. In order to obtain a reduced rate of
withholding under a tax treaty, a
Non-United
States Holder must deliver to the Depositary before the payment
a properly completed and executed IRS
Form W-8BEN
and/or
W-8IMY.
In
order to obtain an exemption from withholding on the grounds
that the gross proceeds paid under the Offer are effectively
connected with the conduct of a trade or business within the
United States, a
Non-United
States Holder must deliver to the Depositary a properly
completed and executed IRS
Form W-8ECI.
If tax is withheld, a
Non-United
States Holder may be eligible to obtain a refund of all or a
portion of such tax withheld if such
Non-United
States Holder satisfies one of the Section 302 tests
described above or is otherwise able to establish that no
withholding or a reduced amount of withholding is due.
NON-UNITED
STATES HOLDERS MAY BE SUBJECT TO INCOME TAX ON THE SALE OF
SHARES PURSUANT TO THE OFFER, EVEN IF SUCH HOLDERS WOULD
NOT BE SUBJECT TO TAX IF THOSE SAME SHARES OF THE COMMON
STOCK WERE SOLD ON THE OPEN MARKET. IN ADDITION,
NON-UNITED
STATES HOLDERS MAY BE SUBJECT TO A 30% WITHHOLDING TAX ON THE
SALE OF SHARES OF THE COMMON STOCK PURSUANT TO THE OFFER,
EVEN IF THE TRANSACTION IS NOT SUBJECT TO INCOME TAX.
NON-UNITED
STATES HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING
THE UNITED STATES TAX CONSEQUENCES OF PARTICIPATION IN THE
OFFER, INCLUDING THE APPLICATION OF UNITED STATES FEDERAL INCOME
TAX WITHHOLDING RULES, ELIGIBILITY FOR A REDUCTION OF OR AN
EXEMPTION FROM WITHHOLDING TAX, AND THE REFUND
PROCEDURE.
Information Reporting and Backup
Withholding.
Payments made to holders in the
Offer may be reported to the IRS. In addition, under the United
States federal income tax laws, the Depositary will be required
to backup withhold at the applicable statutory rate on the
purchase price paid to certain stockholders (who are not
exempt recipients) pursuant to the Offer. To avoid
such backup withholding, each such United States Holder must
provide the Depositary with such stockholders taxpayer
identification number and certify that such stockholder is not
subject to backup withholding by completing the Substitute
Form W-9
in the Letter of Transmittal, or otherwise establish to the
satisfaction of the Depositary that such stockholder is not
subject to backup withholding. Certain exempt
recipients (including, among others, all corporations and
certain
Non-United
States Holders) are not subject to these backup withholding
requirements. For a
Non-United
States Holder to qualify for such exemption, such
Non-United
States Holder must submit an IRS
Form W-8BEN
(or other applicable IRS Form), signed under penalties of
perjury, attesting to such
Non-United
States Holders exempt status.
Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules will be refunded or
credited against the stockholders United States federal
income tax liability if certain required information is
furnished to the IRS. Stockholders should consult their own tax
advisors regarding application of backup withholding in their
particular
30
circumstances and the availability of, and procedure for
obtaining, an exemption from backup withholding under current
Treasury Regulations.
THE TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND IS NOT TAX ADVICE. YOU ARE URGED TO CONSULT
YOUR TAX ADVISOR TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO
YOU OF THE OFFER, INCLUDING THE APPLICABILITY AND EFFECT OF
STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.
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14.
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Extension
of the Offer; Termination; Amendment.
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We expressly reserve the right to extend the period of time the
Offer is open and delay acceptance for payment of, and payment
for, any shares of the Common Stock by giving oral or written
notice of such extension to the Depositary and making a public
announcement of such extension. During any such extension, all
shares of the Common Stock previously tendered and not properly
withdrawn will remain subject to the Offer and to the rights of
a tendering stockholder to withdraw such stockholders
shares of the Common Stock.
We also expressly reserve the right, in our sole discretion, not
to accept for payment and not pay for any shares of the Common
Stock not previously accepted for payment or paid for, subject
to applicable law, to postpone payment for shares of the Common
Stock or terminate the Offer upon the occurrence of any of the
conditions specified in Section 7 by giving oral or written
notice of the termination or postponement to the Depositary and
making a public announcement of the termination or postponement.
Our reservation of the right to delay payment for shares of the
Common Stock that we have accepted for payment is limited by
Exchange Act Rule 13e-4(f)(3), which requires that we must
pay the consideration offered or return the shares of the Common
Stock tendered promptly after termination or withdrawal of the
Offer.
Subject to compliance with applicable law, we further reserve
the right, in our reasonable discretion, and regardless of
whether any of the events set forth in Section 7 have
occurred or are deemed by us to have occurred, to amend the
Offer in any respect (including, without limitation, by
decreasing or increasing the consideration offered in the Offer
to holders of shares of the Common Stock or by decreasing or
increasing the number of shares of the Common Stock being sought
in the Offer). Amendments to the Offer may be made at any time
and from time to time by public announcement of the amendment.
In the case of an extension, the amendment shall be issued no
later than 9:00 a.m., New York City time, on the next
business day after the last previously scheduled or announced
expiration date. Any public announcement made pursuant to the
Offer will be disseminated promptly to stockholders in a manner
reasonably designed to inform stockholders of the change.
Without limiting the manner in which we may choose to make a
public announcement, except as required by applicable law, we
will have no obligation to publish, advertise or otherwise
communicate any public announcement other than by issuing a
press release to the Dow Jones News Service or comparable
service.
If we materially change the terms of the Offer or the
information concerning the Offer, or if we waive a material
condition of the Offer, we will extend the Offer to the extent
required by Exchange Act Rule 13e-4(f)(1)(ii). This rule
and related releases and interpretations of the SEC provide that
the minimum period during which an Offer must remain open
following material changes in the terms of the Offer or
information concerning the Offer (other than a change in price
or a change in percentage of securities sought) will depend on
the facts and circumstances, including the relative materiality
of the terms or information. If:
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we increase or decrease the price to be paid for shares or
increase or decrease the number of shares of the Common Stock
being sought in the Offer and, in the event of an increase in
the number of shares of the Common Stock being sought, the
increase exceeds 2% of the outstanding shares of the Common
Stock, and
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the Offer is scheduled to expire at any time earlier than the
expiration of a period ending on the tenth business day from,
and including, the date that notice of such an increase or
decrease is first published, sent or given to security holders
in the manner specified in this Section 14,
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then in each case the Offer will be extended until the
expiration of the period of at least ten business days.
If we purchase an additional amount of shares of the Common
Stock that does not exceed 2% of the outstanding shares of the
Common Stock (approximately 3,192,861 shares as of
March 2, 2007), this will not be deemed a material change
to the terms of the Offer and we will not be required to amend
or extend the Offer. See Section 1.
31
We have retained Merrill Lynch & Co. and Deutsche Bank
Securities Inc. to act as the Dealer Managers in
connection with the Offer. The Dealer Managers may communicate
with brokers, dealers, commercial banks and trust companies with
respect to the Offer. The Dealer Managers will receive a
reasonable and customary fee for these services. We also have
agreed to reimburse the Dealer Managers for reasonable
out-of-pocket
expenses incurred in connection with the Offer, including
reasonable fees and expenses of counsel, and to indemnify the
Dealer Managers against liabilities in connection with the
Offer, including liabilities under the federal securities laws.
The Dealer Managers and their affiliates may actively trade the
Companys debt and equity securities for their own accounts
and for the accounts of customers and, accordingly, may at any
time hold a long or short position in the Companys
securities.
The Dealer Managers and their affiliates provide, from time to
time, investment banking and financial advisory services to the
Company and our affiliates. The Dealer Managers and their
affiliates receive customary fees for such services.
We have retained Georgeson to act as Information Agent and
Computershare Trust Company, N.A. to act as Depositary in
connection with the Offer. The Information Agent may contact
holders of shares by mail, telephone, telegraph and personal
interviews and may request brokers, dealers, commercial banks,
trust companies and other nominee stockholders to forward
materials relating to the Offer to beneficial owners. The
Information Agent and the Depositary will each receive
reasonable and customary compensation for their respective
services, will be reimbursed by us for reasonable
out-of-pocket
expenses and will be indemnified against certain liabilities in
connection with the Offer, including liabilities under the
federal securities laws.
We will not pay any fees or commissions to brokers, dealers,
commercial banks, trust companies or other persons (other than
fees to the Dealer Managers and the Information Agent as
described above) for soliciting tenders of shares pursuant to
the Offer. Stockholders holding shares through brokers or banks
are urged to consult the brokers or banks to determine whether
transaction costs may apply if stockholders tender shares
through the brokers or banks and not directly to the Depositary.
We will, however, upon request, reimburse brokers, dealers,
commercial banks, trust companies or other nominees for
customary mailing and handling expenses incurred by them in
forwarding the Offer to Purchase, the Letter of Transmittal and
related materials to the beneficial owners of shares held by
them as a nominee or in a fiduciary capacity. No broker, dealer,
commercial bank, trust company or other nominee has been
authorized to act as our agent or the agent of the Dealer
Managers, the Information Agent or the Depositary for purposes
of the Offer. We will pay or cause to be paid all stock transfer
taxes, if any, on our purchase of shares except as otherwise
provided in Instruction 7 in the Letter of Transmittal.
We are not aware of any jurisdiction where the making of the
Offer is not in compliance with applicable law. If we become
aware of any jurisdiction where the making of the Offer or the
acceptance of shares pursuant to the Offer is not in compliance
with any applicable law, we will make a good faith effort to
comply with the applicable law. If, after a good faith effort,
we cannot comply with the applicable law, the Offer will not be
made to, nor will tenders be accepted from or on behalf of, the
holders of shares residing in that jurisdiction. In any
jurisdiction where the securities, blue sky or other
laws require the Offer to be made by a licensed broker or
dealer, the Offer will be deemed to be made on our behalf by the
Dealer Managers or one or more registered brokers or dealers
licensed under the laws of the jurisdiction. Pursuant to
Exchange Act Rule 13e-4, we have filed with the SEC the
Schedule TO, which contains additional information relating
to the Offer. The Schedule TO, including the exhibits and
any amendments thereto, may be examined, and copies may be
obtained, at the same places and in the same manner set forth in
Section 10 with respect to information concerning our
company.
32
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS
DOCUMENT OR TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT
AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION ON OUR BEHALF
AS TO WHETHER YOU SHOULD TENDER OR NOT TENDER YOUR
SHARES IN THE OFFER. WE HAVE NOT AUTHORIZED ANY PERSON TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION
WITH THE OFFER OTHER THAN THOSE CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL. ANY RECOMMENDATION OR
ANY SUCH INFORMATION OR REPRESENTATION MADE BY ANYONE ELSE MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY,
CIH, THE DEALER MANAGERS, THE DEPOSITARY OR THE INFORMATION
AGENT.
CELANESE CORPORATION
CELANESE
INTERNATIONAL HOLDINGS
LUXEMBOURG S.À R.L.
March 6, 2007
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The Letter of Transmittal and certificates for shares, and any
other required documents should be sent or delivered by each
stockholder or the stockholders broker, dealer, commercial
bank, trust company or nominee to the Depositary at one of its
addresses set forth below. To confirm delivery of shares,
stockholders are directed to contact the Depositary.
Stockholders submitting certificates representing shares to be
tendered must deliver such certificates together with the Letter
of Transmittal and any other required documents by mail or
overnight courier. Facsimile copies of share certificates will
not be accepted.
The
Depositary for the Offer is:
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By Mail:
Computershare
Attn: Celanese Dutch Auction
P.O. Box 859208
Braintree, MA 02185
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By Overnight Courier:
Computershare
Attn: Celanese Dutch Auction
161 Bay State Drive
Braintree, MA 02184
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Any questions or requests for assistance may be directed to the
Information Agent or the Dealer Managers at their respective
telephone numbers and addresses set forth below. Requests for
additional copies of this Offer to Purchase, the Letter of
Transmittal or related documents may be directed to the
Information Agent at its telephone numbers or address set forth
below. You may also contact your broker, dealer, commercial
bank, trust company or other nominee for assistance concerning
the Offer.
The
Information Agent for the Offer is:
17 State St., 10th Floor
New York, New York 10004
Banks and Brokerage Firms, Please Call:
(212) 440-9800
All Others Call Toll-free:
(866) 314-1598
The
Dealer Managers for the Offer are:
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Merrill Lynch &
Co.
Special Equity Transactions
4 World Financial Center
New York, New York 10080
Call Collect:
(609) 818-8000
Call Toll Free:
(877) 653-2948
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Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York
Call Toll Free: (877) 221-7676
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Exhibit (a)(1)(ii)
LETTER OF
TRANSMITTAL
For Tender of Shares of Common Stock
of
CELANESE
CORPORATION
at a
Price of
Not Greater Than $30.50 per Share
Nor Less Than $28.00 Per Share
Pursuant to the Offer to Purchase
Dated March 6, 2007
THE OFFER, PRORATION PERIOD AND
WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON TUESDAY, APRIL 3, 2007, UNLESS THE OFFER IS
EXTENDED.
THIS FORM SHOULD BE
COMPLETED, SIGNED AND SENT TOGETHER WITH ALL OTHER DOCUMENTS,
INCLUDING YOUR CERTIFICATES FOR SHARES OF COMMON STOCK, TO
COMPUTERSHARE TRUST COMPANY, N.A. (THE
DEPOSITARY) AT ONE OF THE ADDRESSES SET FORTH BELOW.
DELIVERY OF THIS LETTER OF TRANSMITTAL OR OTHER DOCUMENTS TO AN
ADDRESS OTHER THAN AS SET FORTH BELOW DOES NOT CONSTITUTE VALID
DELIVERY. DELIVERIES TO CELANESE CORPORATION, CELANESE
INTERNATIONAL HOLDINGS LUXEMBOURG S.À R.L., MERRILL
LYNCH & CO. OR DEUTSCHE BANK SECURITIES INC.
(COLLECTIVELY, THE DEALER MANAGERS), OR GEORGESON
(THE INFORMATION AGENT) WILL NOT BE FORWARDED TO THE
DEPOSITARY AND THEREFORE WILL NOT CONSTITUTE VALID DELIVERY.
DELIVERIES TO THE DEPOSITORY TRUST COMPANY WILL NOT
CONSTITUTE VALID DELIVERY TO THE DEPOSITARY.
The instructions in this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed.
The
Depositary for the Offer is:
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By Mail:
Computershare
Attn: Celanese Dutch Auction
P.O. Box 859208
Braintree, MA 02185
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By Overnight Courier:
Computershare
Attn: Celanese Dutch Auction
161 Bay State Drive
Braintree, MA 02184
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DESCRIPTION OF
SHARES TENDERED
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(See Instructions 3 and 4)
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Name(s) and Address(es) of Holder(s)
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Shares Tendered
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(if blank, please fill in exactly as name(s)
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(Attach additional list, if necessary
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appear(s) on certificate(s))
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See Instruction 3)
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Total Number of
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Certificate
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Shares Represented
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Number of Shares
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Number(s)*
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by Certificate*
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Tendered**
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Total Shares
Tendered:
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* Need not be completed if
transfer is to be made by book-entry transfer.
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** Unless otherwise
indicated, it will be assumed that all shares represented by
each certificate are being tendered. See Instruction 4.
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READ THE
INSTRUCTIONS CAREFULLY BEFORE COMPLETING THIS LETTER OF
TRANSMITTAL.
Indicate below the order (by certificate number) in which shares
are to be purchased in the event of proration (attach additional
signed list if necessary). If you do not designate an order, if
less than all shares tendered are purchased due to proration,
shares will be selected for purchase by the Depositary. See
Instruction 16.
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Lost
Certificates.
I
have lost my certificate(s) for
shares
and require assistance in replacing the shares. (See
Instruction 13).
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2
YOU MUST
SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW
AND COMPLETE THE SUBSTITUTE
FORM W-9
PROVIDED BELOW
OR APPROPRIATE INTERNAL REVENUE SERVICE FORM
W-8.
This Letter of Transmittal is to be used either if certificates
for shares of the Series A Common Stock, par value
$0.0001 per share (the Common Stock), being
tendered are to be forwarded with this Letter of Transmittal or,
unless an Agents Message (defined below) is utilized, if
delivery of shares is to be made by book-entry transfer to an
account maintained by the Depositary at The Depository Trust
Company, which is referred to as the Book-Entry Transfer
Facility, pursuant to the procedures set forth in Section 3
of the Offer to Purchase dated March 6, 2007 (as may be
amended or supplemented from time to time, the Offer to
Purchase). Tendering stockholders must deliver either the
certificates for, or timely confirmation of book-entry transfer
in accordance with the procedures described in Section 3 of
the Offer to Purchase with respect to, their shares and all
other documents required by this Letter of Transmittal to the
Depositary by 5:00 p.m., New York City time, on Tuesday,
April 3, 2007 (as this time may be extended at any time or
from time to time by Celanese Corporation and its wholly owned
subsidiary, Celanese International Holdings Luxembourg S.à.
r.l. (collectively, Purchaser), in Purchasers
sole discretion in accordance with the terms of the Offer, the
Expiration Date). All capitalized terms not
otherwise defined herein have the meaning ascribed to them in
the Offer to Purchase.
Your attention is directed in particular to the following:
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1.
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If you want to retain the shares of Common Stock you own, you do
not need to take any action.
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2.
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If you want to participate in the Offer and wish to maximize the
chance that Purchaser will accept for payment all of the shares
you are tendering by this Letter of Transmittal, you should
check the box marked Shares Tendered At Price
Determined Under The Offer below and complete the other
portions of this Letter of Transmittal as appropriate. If you
agree to accept the purchase price determined in the Offer, your
shares will be deemed to be tendered at the minimum price of
$28.00 per share for purposes of determining the Final
Purchase Price. You should understand that this election may
effectively lower the Final Purchase Price and could result in
your shares being purchased at the minimum price of
$28.00 per share.
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3.
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If you wish to select a specific price at which you will be
tendering your shares, you should select one of the boxes in the
section captioned Shares Tendered At Price Determined
By Stockholder below and complete the other portions of
this Letter of Transmittal as appropriate.
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3
METHOD OF DELIVERY
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CHECK HERE IF CERTIFICATES FOR TENDERED SHARES ARE ENCLOSED
HEREWITH.
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CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE
DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER
FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
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Name of Tendering Institution:
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PRICE (IN
DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED
(See Instruction 5)
THE UNDERSIGNED IS TENDERING SHARES AS FOLLOWS (CHECK ONLY
ONE BOX):
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(1)
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SHARES TENDERED AT PRICE DETERMINED UNDER THE OFFER
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By checking the box below INSTEAD OF ONE OF THE BOXES UNDER
Shares Tendered At Price Determined By
Stockholder, the undersigned hereby tenders shares at the
purchase price as shall be determined by Purchaser in accordance
with the terms of the Offer.
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The undersigned wants to maximize the chance that Purchaser will
accept for payment all of the shares the undersigned is
tendering (subject to the possibility of proration).
Accordingly, by checking this box instead of one of the price
boxes below, the undersigned hereby tenders shares at, and is
willing to accept, the purchase price determined by Purchaser in
accordance with the terms of the Offer. The undersigned
understands that this action will result in the
undersigneds shares being deemed to be tendered at the
minimum price of $28.00 per share for purposes of
determining the Final Purchase Price. This may effectively lower
the Final Purchase Price and could result in the undersigned
receiving a per share price as low as $28.00.
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(2)
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SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER
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By checking ONE of the following boxes INSTEAD OF THE BOX UNDER
Shares Tendered At Price Determined Under The
Offer, the undersigned hereby tenders shares of Common
Stock at the price checked. The undersigned understands that
this action could result in Purchaser purchasing none of the
shares tendered hereby if the purchase price determined by
Purchaser for the shares is less than the price checked below.
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$28.00
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$29.00
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$30.00
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$28.25
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$29.25
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$30.25
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$28.50
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$29.50
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$30.50
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$28.75
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$29.75
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CHECK ONLY ONE BOX UNDER (1) OR (2) ABOVE. IF MORE
THAN ONE BOX IS CHECKED ABOVE, THERE IS NO VALID TENDER OF
SHARES.
A STOCKHOLDER DESIRING TO TENDER SHARES AT MORE THAN ONE
PRICE MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH
PRICE AT WHICH SHARES ARE TENDERED. The same shares cannot
be tendered, unless previously properly withdrawn as provided in
Section 3 of the Offer to Purchase, at more than one
price.
5
CONDITIONAL
TENDER
(See Instruction 14)
A stockholder may tender shares subject to the condition that a
specified minimum number of the stockholders shares
tendered pursuant to the Letter of Transmittal must be purchased
if any shares tendered are purchased, all as described in the
Offer to Purchase, particularly in Section 6 of the Offer
to Purchase. Unless at least the minimum number of shares
indicated below is purchased by Purchaser pursuant to the terms
of the Offer, none of the shares tendered will be purchased. It
is the tendering stockholders responsibility to calculate
the minimum number of shares that must be purchased if any are
purchased, and Purchaser urges stockholders to consult their own
tax advisors before completing this section. Unless this box has
been checked and a minimum specified, the tender will be deemed
unconditional.
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The minimum number of
shares that must be purchased, if any are purchased, is:
shares.
If, because of proration, the minimum number of shares
designated will not be purchased, Purchaser may accept
conditional tenders by random lot, if necessary. However, to be
eligible for purchase by random lot, the tendering stockholder
must have tendered all of his or her shares and checked this box:
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The tendered shares
represent all shares held by the undersigned.
ODD LOTS
(See Instruction 15)
To be completed ONLY if shares are being tendered by or on
behalf of a person owning, beneficially or of record, as of the
close of business on the date set forth on the signature page
hereto, and who continues to own, beneficially or of record, as
of the Expiration Date, an aggregate of fewer than
100 shares.
The undersigned either (check one box):
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is the beneficial or record owner of an aggregate of fewer than
100 shares, all of which are being tendered; or
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is a broker, dealer, commercial bank, trust company, or other
nominee that (a) is tendering for the beneficial owner(s),
shares with respect to which it is the record holder, and
(b) believes, based upon representations made to it by the
beneficial owner(s), that each such person is the beneficial
owner of an aggregate of fewer than 100 shares and is
tendering all of the shares beneficially owned by each such
person.
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LOST OR
DESTROYED CERTIFICATE(S)
IF ANY STOCK CERTIFICATE REPRESENTING SHARES THAT YOU OWN
HAS BEEN LOST, STOLEN OR DESTROYED, PLEASE CONTACT THE
DEPOSITARY AT
(781) 575-3400
PROMPTLY TO OBTAIN INSTRUCTIONS AS TO THE STEPS THAT MUST
BE TAKEN IN ORDER TO REPLACE THE CERTIFICATE. THIS LETTER OF
TRANSMITTAL AND RELATED DOCUMENTS CANNOT BE PROCESSED UNTIL THE
PROCEDURES FOR REPLACING LOST OR DESTROYED CERTIFICATES HAVE
BEEN FOLLOWED. PLEASE CONTACT THE DEPOSITARY IMMEDIATELY TO
PERMIT TIMELY PROCESSING OF THE REPLACEMENT DOCUMENTATION. SEE
INSTRUCTION 13.
NOTE:
SIGNATURES MUST BE PROVIDED WHERE INDICATED BELOW.
PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
6
To Computershare Trust Company, N.A.:
The undersigned hereby tenders to Celanese Corporation, a
Delaware corporation, through its wholly owned subsidiary,
Celanese International Holdings Luxembourg S.à r.l., a
Luxembourg limited liability company (collectively,
Purchaser), the above-described shares (the
Shares) of Celanese Corporations Series A
Common Stock, par value $0.0001 per share (the Common
Stock), at the price per share indicated in this Letter of
Transmittal, net to the seller in cash, less any applicable
withholding taxes and without interest, upon the terms and
subject to the conditions set forth in Purchasers Offer to
Purchase dated March 6, 2007 (as amended or supplemented
from time to time, the Offer to Purchase) and this
Letter of Transmittal (which together, as they may be amended or
supplemented from time to time, constitute the
Offer), receipt of which is hereby acknowledged.
Subject to and effective upon acceptance for payment of, and
payment for, the Shares in accordance with, and subject to, the
terms of the Offer, the undersigned hereby sells, assigns and
transfers to, or upon the order of, Purchaser, all right, title
and interest in and to all the Shares and irrevocably
constitutes and appoints Computershare Trust Company, N.A. (the
Depositary), the true and lawful agent and
attorney-in-fact
of the undersigned, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with
an interest), to the full extent of the undersigneds
rights with respect to such Shares, to (a) deliver
certificates for such Shares or transfer ownership of such
Shares on the account books maintained by The Depository Trust
Company (the Book-Entry Transfer Facility),
together, in any such case, with all accompanying evidences of
transfer and authenticity to, or upon the order of Purchaser
upon receipt by the Depositary, as the undersigneds agent,
of the aggregate purchase price with respect to such Shares,
(b) present such Shares for cancellation and transfer on
Celanese Corporations books and (c) receive all
benefits and otherwise exercise all rights of beneficial
ownership of such Shares, all in accordance with the terms of
the Offer.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to tender, sell, assign
and transfer the Shares and, when the same are accepted for
payment, Purchaser will acquire good title thereto, free and
clear of all liens, security interests, restrictions, charges,
claims, encumbrances, conditional sales agreements or other
similar obligations relating to the sale or transfer of the
Shares, and the same will not be subject to any adverse claim or
right. The undersigned will, upon request by the Depositary or
Purchaser, execute any additional documents deemed by the
Depositary or Purchaser to be necessary or desirable to complete
the sale, assignment and transfer of the Shares (and any and all
such other shares or other securities or rights), all in
accordance with the terms of the Offer.
All authority conferred or agreed to be conferred pursuant to
this Letter of Transmittal shall be binding on the successors,
assigns, heirs, personal representatives, executors,
administrators and other legal representatives of the
undersigned and shall not be affected by, and shall survive, the
death or incapacity of the undersigned. Except as stated in the
Offer to Purchase, this tender is irrevocable.
The undersigned understands that:
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1.
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the valid tender of Shares pursuant to any of the procedures
described in Section 3 of the Offer to Purchase and in the
instructions to this Letter of Transmittal constitutes the
undersigneds acceptance of the terms and conditions of the
Offer; Purchasers acceptance of the Shares will constitute
a binding agreement between the undersigned and Purchaser on the
terms and subject to the conditions of the Offer;
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2.
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it is a violation of Rule 14e-4 promulgated under the
Securities Exchange Act of 1934, as amended (Exchange
Act), for a person acting alone or in concert with others,
directly or indirectly, to tender shares for such persons
own account unless at the time of tender and at the Expiration
Date, which is defined as 5:00 p.m., New York City time, on
Tuesday, April 3, 2007 (as this time may be extended at any
time or from time to time by Purchaser in its sole discretion in
accordance with the terms of the offer), such person has a
net long position in (a) the shares that is
equal to or greater than the amount tendered and will deliver or
cause to be delivered such shares for the purpose of tender to
Purchaser within the period specified in the Offer, or
(b) other securities immediately convertible into,
exercisable for or exchangeable into shares (Equivalent
Securities) that is equal to or greater than the amount
tendered and, upon the acceptance of such tender, will acquire
such shares by conversion, exchange or exercise of such
Equivalent Securities to the extent required by the terms of the
Offer and will deliver or cause to be delivered such shares so
acquired for the purpose of tender to Purchaser within the
period specified in the Offer. Exchange Act Rule 14e-4 also
provides a similar restriction applicable to the tender or
guarantee of a tender on behalf of another person. A tender of
shares made pursuant to any method of delivery set forth in this
Letter of Transmittal will constitute the tendering
stockholders representation and warranty to Purchaser that
(y) such stockholder has a net long position in
shares or Equivalent Securities being tendered within the
meaning of Rule 14e-4, and (z) such tender of shares
complies with
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7
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Rule 14e-4. Purchasers acceptance for payment of
shares tendered pursuant to the Offer will constitute a binding
agreement between the tendering stockholder and Purchaser upon
the terms and subject to the conditions of the Offer;
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3.
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Purchaser will, upon the terms and subject to the conditions of
the Offer, determine a single per share price (the Final
Purchase Price), not greater than $30.50 nor less than
$28.00 per share, net to the seller in cash, less any
applicable withholding taxes and without interest, that it will
pay for shares properly tendered and not properly withdrawn from
the Offer, taking into account the number of shares so tendered
and the prices specified by tendering stockholders;
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4.
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the Final Purchase Price will be the lowest purchase price not
greater than $30.50 nor less than $28.00 per share that
will allow Purchaser to purchase 11,279,243 shares or such
lesser number of shares as are properly tendered and not
properly withdrawn;
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5.
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Purchaser reserves the right, in its sole discretion, to
purchase more than 11,279,243 shares in the Offer,
and/or
to
amend the maximum aggregate purchase price, or to amend the
Offer in any other respect, subject to applicable law;
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6.
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all shares properly tendered prior to the Expiration Date at or
below the Final Purchase Price and not properly withdrawn will
be purchased in the Offer at the Final Purchase Price, upon the
terms and subject to the conditions of the Offer, including the
odd lot priority, proration (because more than the
number of shares sought are properly tendered) and conditional
tender provisions described in the Offer to Purchase;
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7.
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Purchaser will return at its expense all shares it does not
purchase, including shares tendered at prices greater than the
Final Purchase Price and not properly withdrawn and shares not
purchased because of proration or conditional tenders, promptly
following the Expiration Date;
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8.
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under the circumstances set forth in the Offer to Purchase,
Purchaser expressly reserves the right, in its sole discretion,
to terminate the Offer at any time and from time to time, upon
the occurrence of any of the events set forth in Section 7
of the Offer to Purchase, and at any time and from time to time,
subject to applicable law, to extend the period of time during
which the Offer is open and thereby delay acceptance for payment
of, and payment for, any shares by giving oral or written notice
of such extension to the Depositary and making a public
announcement thereof. During any such extension, all shares
previously tendered and not properly withdrawn will remain
subject to the Offer and to the rights of a tendering
stockholder to withdraw such stockholders shares;
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9.
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stockholders who cannot deliver their certificates and all other
required documents to the Depositary or complete the procedures
for book-entry transfer prior to the Expiration Date may tender
their shares by properly completing and duly executing the
Notice of Guaranteed Delivery pursuant to the guaranteed
delivery procedures set forth in Section 3 of the Offer to
Purchase;
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10.
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Purchaser has advised the undersigned to consult with the
undersigneds own tax and financial advisors as to the
consequences of tendering shares of Common Stock pursuant to the
Offer; and
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11.
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THE OFFER IS NOT BEING MADE TO (NOR WILL TENDERS OF
SHARES BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS IN ANY
JURISDICTION IN WHICH THE MAKING OR ACCEPTANCE OF THE OFFER
WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF THAT
JURISDICTION.
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The undersigned hereby agrees to all of the terms and conditions
of the Offer.
Unless otherwise indicated below in the section captioned
Special Issuance Instructions,
please issue
the check for payment of the purchase price
and/or
return any certificates for shares not tendered or accepted for
payment in the name(s) of the registered holder(s) appearing
under
Description of Shares Tendered.
Similarly, unless otherwise indicated under
Special
Delivery Instructions,
please mail the check for
payment of the purchase price
and/or
return any certificates for shares not tendered or accepted for
payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under
Description of Shares Tendered.
In the
event that both the
Special Delivery Instructions
and the
Special Payment Instructions
are
completed, please issue the check for payment of the purchase
price
and/or
return any certificates for shares not tendered or accepted for
payment (and any accompanying documents, as appropriate) in the
name(s) of, and deliver such check
and/or
return such certificates (and any accompanying documents, as
appropriate) to, the person or persons so indicated. Please
credit any shares tendered herewith by book-entry transfer that
are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility designated above. Appropriate
medallion signature guarantees by an Eligible Institution (as
defined in Instruction 1) have been included with
respect to Shares for which Special Issuance Instructions have
been given. The undersigned recognizes that Purchaser has no
obligation pursuant to the
Special Payment
Instructions
to transfer any shares from the name of
the registered holder(s) thereof if Purchaser does not accept
for payment any of the Shares.
8
SPECIAL
ISSUANCE INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
SPECIAL PAYMENT INSTRUCTIONS
To be completed ONLY if certificates for shares not tendered or
not accepted for payment
and/or
the
check for payment of the purchase price of shares accepted for
payment are to be issued in the name of someone other than the
undersigned, or if shares tendered hereby and delivered by
book-entry transfer which are not purchased are to be returned
by crediting them to an account at the book-entry transfer
facility other than the account designated above.
o
Certificate(s) to:
(Please Print)
(Include Zip Code)
(Tax Identification or Social
Security Number)
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o
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Credit shares delivered by book-entry transfer and not purchased
to the account set forth below:
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SPECIAL DELIVERY INSTRUCTIONS
To be completed ONLY if certificates for shares not tendered or
not accepted for payment
and/or
the
check for payment of the purchase price of shares accepted for
payment are to be sent to someone other than the undersigned or
to the undersigned at an address other than that above.
o
Certificate(s) to:
(Please Print)
(Include Zip Code)
(Tax Identification or Social
Security Number)
9
IMPORTANT:
STOCKHOLDERS SIGN HERE
(Also Please Complete Substitute
Form W-9
Below or Appropriate Internal Revenue Service
Form W-8)
Signature(s) of
Stockholder(s)
Dated:
_
_
,
2007
(Must be signed by registered holder(s) exactly as name(s)
appear(s) on stock certificate(s) or by person(s) authorized to
become registered holder(s) of stock certificate(s) as evidenced
by endorsement or stock powers transmitted herewith. If signed
by a trustee, executor, administrator, guardian,
attorney-in-fact,
officer of a corporation or other person acting in a fiduciary
or representative capacity, the full title of the person should
be set forth. See Instruction 6).
(Please Print)
(Include Zip Code)
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Daytime Area Code and Telephone Number:
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Taxpayer Identification or Social Security No.:
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(Complete Accompanying Substitute
Form W-9
or Appropriate Internal Revenue Service
Form W-8)
Signature(s)
Guarantee
(See
Instructions 1 and 6)
Complete ONLY if required by Instruction l.
Your signature must be
medallion guaranteed
by an
Eligible Institution (see Instruction 1).
NOTE: A notarization by a notary public is not acceptable.
FOR USE BY FINANCIAL INSTITUTION ONLY.
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
10
INSTRUCTIONS
Forming
Part of the Terms and Conditions of the Offer
1.
Guarantee of Signatures.
No signature
guarantee is required on this Letter of Transmittal if
(a) this Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Instruction 1,
includes any participant in the Book-Entry Transfer
Facilitys system whose name appears on a security position
listing as the owner of the shares) of shares tendered herewith,
unless such registered holder(s) has (have) completed the
section captioned Special Issuance Instructions on
this Letter of Transmittal) or (b) such shares are tendered
for the account of a bank, broker, dealer, credit union, savings
association or other entity that is a member in good standing of
Medallion Program approved by the Securities Transfer Agents
Association, Inc., including the Securities Transfer Agents
Medallion Program, the New York Stock Exchange, Inc. Medallion
Signature Program or the Stock Exchange Medallion Program, or is
otherwise an eligible guarantor institution, as the
term is defined in Exchange Act Rule 17Ad-15, each of the
foregoing constituting an Eligible Institution. In
all other cases, all signatures on this Letter of Transmittal
must be guaranteed by an Eligible Institution. See
Instruction 6. If you have any questions regarding the need
for a signature guarantee, please call the Information Agent at
(866) 314-1598
(Toll Free).
2.
Requirements of Tender.
This Letter of
Transmittal is to be completed by stockholders either if
certificates are to be forwarded herewith or, unless an
Agents Message is utilized, if delivery of shares is to be
made pursuant to the procedures for book-entry transfer set
forth in Section 3 of the Offer to Purchase. For a
stockholder validly to tender shares pursuant to the Offer,
(a) a Letter of Transmittal, properly completed and duly
executed, and the certificate(s) representing the tendered
shares, together with any required signature guarantees, and any
other required documents, must be received by the Depositary at
one of its addresses set forth on the back of this Letter of
Transmittal prior to the Expiration Date, or (b) a Letter
of Transmittal, properly completed and duly executed, together
with any required Agents Message and any other required
documents, must be received by the Depositary at one of its
addresses set forth on the back of this Letter of Transmittal
prior to the Expiration Date and shares must be delivered
pursuant to the procedures for book-entry transfer set forth in
this Letter of Transmittal (and a book-entry confirmation must
be received by the Depositary) prior to the Expiration Date.
Tenders of shares made pursuant to the Offer may be withdrawn at
any time prior to the Expiration Date. If Purchaser extends the
Offer beyond that time, tendered shares may be withdrawn at any
time until the extended expiration of the Offer. Tendered shares
that have not previously been accepted by Purchaser for payment
may be withdrawn at any time after 5:00 p.m., New York City
time, on Tuesday, May 1, 2007. To withdraw tendered shares,
stockholders must deliver a written notice of withdrawal to the
Depositary within the prescribed time period at one of the
addresses set forth in this Letter of Transmittal. Any notice of
withdrawal must specify the name of the tendering stockholder,
the number of shares to be withdrawn, and the name of the
registered holder of the shares. In addition, if the
certificates for shares to be withdrawn have been delivered or
otherwise identified to the Depositary, then, before the release
of the certificates, the tendering stockholder must also submit
the serial numbers shown on the particular certificates for
shares to be withdrawn and the signature(s) on the notice of
withdrawal must be guaranteed by an Eligible Institution (except
in the case of shares tendered by an Eligible Institution). If
shares have been tendered pursuant to the procedures for
book-entry transfer, the notice of withdrawal also must specify
the name and the number of the account at The Depository Trust
Company to be credited with the withdrawn shares and otherwise
comply with the procedures of that facility. Withdrawals may not
be rescinded and any shares withdrawn will not be properly
tendered for purposes of the Offer unless the withdrawn shares
are properly re-tendered prior to the Expiration Date by
following the procedures described above.
THE METHOD OF DELIVERY OF SHARES, THIS LETTER OF TRANSMITTAL
AND ANY OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE
BOOK-ENTRY TRANSFER FACILITY, IS AT THE SOLE ELECTION AND RISK
OF THE TENDERING STOCKHOLDER. SHARES, THIS LETTER OF TRANSMITTAL
AND ALL OTHER DOCUMENTS WILL BE DEEMED DELIVERED ONLY WHEN
ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A
BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF YOU ELECT
TO DELIVER BY MAIL, WE RECOMMEND THAT YOU USE REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, AND THAT YOU PROPERLY INSURE THE
DOCUMENTS. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO
ENSURE TIMELY DELIVERY.
Except as specifically provided by the Offer to Purchase, no
alternative, conditional or contingent tenders will be accepted.
No fractional shares will be purchased. All tendering
stockholders, by execution of this Letter of Transmittal, waive
any right to receive any notice of the acceptance for payment of
their shares.
3.
Inadequate Space.
If the space
provided in this Letter of Transmittal is inadequate, the
certificate numbers
and/or
the
number of shares should be listed on a separate signed schedule
attached hereto.
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4.
Partial Tenders (Not Applicable to Stockholders Who
Tender by Book-Entry Transfer).
If fewer than all
of the shares represented by any certificate submitted to the
Depositary are to be tendered, fill in the number of shares that
are to be tendered in the box entitled Number of
Shares Tendered. In any such case, new certificate(s)
for the remainder of the shares that were evidenced by the old
certificate(s) will be sent to the registered holder(s), unless
otherwise provided in the appropriate box on this Letter of
Transmittal, as soon as practicable after the acceptance for
payment of, and payment for, the shares tendered herewith. All
shares represented by certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5.
Indication of Price at Which Shares are Being
Tendered.
For shares to be properly tendered, the
stockholder MUST either (1) check the box in the section
captioned Shares Tendered At Price Determined Under
The Offer in order to maximize the chance of having
Purchaser accept for payment all of the shares tendered (subject
to the possibility of proration) or (2) check the box
indicating the price per share at which such stockholder is
tendering shares under Shares Tendered At Price
Determined by Stockholder. Selecting option (1) could
result in the stockholder receiving a price per share as low as
$28.00.
ONLY ONE BOX UNDER (1) OR (2) MAY BE CHECKED. IF
MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED, THERE IS
NO PROPER TENDER OF SHARES. A STOCKHOLDER WISHING TO TENDER
PORTIONS OF SUCH STOCKHOLDERS SHARE HOLDINGS AT DIFFERENT
PRICES MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH
PRICE AT WHICH SUCH STOCKHOLDER WISHES TO TENDER EACH SUCH
PORTION OF SUCH STOCKHOLDERS SHARES
. The same shares
cannot be tendered more than once, unless previously properly
withdrawn as provided in Section 4 of the Offer to
Purchase, at more than one price.
6.
Signatures on Letter of Transmittal, Stock Powers and
Endorsements.
If this Letter of Transmittal is
signed by the registered holder(s) of the shares tendered
hereby, the signature(s) must correspond with the name(s) as
written on the face of the certificate(s) without any change or
alteration whatsoever.
If any of the shares tendered hereby are owned of record by two
or more joint owners, all such persons must sign this Letter of
Transmittal.
If any shares tendered hereby are registered in different names
on several certificates, it will be necessary to complete, sign
and submit as many separate Letters of Transmittal as there are
different registrations of certificates.
If this Letter of Transmittal or any certificate or stock power
is signed by a trustee, executor, administrator, guardian,
attorney-in-fact,
officer of a corporation or other person acting in a fiduciary
or representative capacity, he or she should so indicate when
signing and submit proper evidence satisfactory to Purchaser of
his or her authority to so act.
If this Letter of Transmittal is signed by the registered
owner(s) of the shares tendered hereby, no endorsements of
certificates or separate stock powers are required unless
payment of the purchase price is to be made, or certificates for
shares not tendered or accepted for payment are to be issued, to
a person other than the registered owner(s). Signatures on any
such certificates or stock powers must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than
the registered owner(s) of the shares tendered hereby, the
certificate(s) representing such shares must be properly
endorsed for transfer or accompanied by appropriate stock
powers, in either case signed exactly as the name(s) of the
registered owner(s) appear(s) on the certificates(s). The
signature(s) on any such certificate(s) or stock power(s) must
be guaranteed by an Eligible Institution.
7.
Stock Transfer Taxes.
Purchaser will
pay any stock transfer taxes with respect to the transfer and
sale of shares to it pursuant to the Offer. If, however, payment
of the purchase price is to be made to, or if shares not
tendered or accepted for payment are to be registered in the
name of, any person(s) other than the registered owner(s), or if
shares tendered hereby are registered in the name(s) of any
person(s) other than the person(s) signing this Letter of
Transmittal, the amount of any stock transfer taxes (whether
imposed on the registered owner(s) or such person(s)) payable on
account of the transfer to such person(s) will be deducted from
the purchase price unless satisfactory evidence of the payment
of such taxes or exemption from the payment of such taxes is
submitted with this Letter of Transmittal.
Except as provided in this Instruction 7, it will not be
necessary for transfer tax stamps to be affixed to the
certificates listed in this Letter of Transmittal.
8.
Special Payment and Delivery
Instructions.
If a check for the purchase price
of any shares accepted for payment is to be issued in the name
of,
and/or
certificates for any shares not accepted for payment or not
tendered are to be issued in the name of
and/or
returned to, a person other than the signer of this Letter of
Transmittal or if a check is to be sent,
and/or
such
certificates are to be returned, to a person other than the
signer of this Letter of Transmittal or to an address other than
that shown above, the appropriate boxes on this Letter of
Transmittal should be completed.
12
9.
Waiver of Conditions;
Irregularities.
All questions as to the number of
shares to be accepted, the purchase price to be paid for shares
to be accepted, the validity, form, eligibility (including time
of receipt) and acceptance for payment of any tender of shares
and the validity (including time of receipt) and form of any
notice of withdrawal of tendered shares will be determined by
Purchaser, in its sole discretion, and such determination will
be final and binding on all parties. Purchaser may delegate
power in whole or in part to the Depositary. Purchaser reserves
the absolute right to reject any or all tenders of any shares
that Purchaser determines are not in proper form or the
acceptance for payment of or payment for which may, in the
opinion of Purchasers counsel, be unlawful. Purchaser
reserves the absolute right to reject any notices of withdrawal
that it determines are not in proper form. Purchaser also
reserves the absolute right, subject to the applicable rules and
regulations of the Securities and Exchange Commission, to waive
any of the conditions of the Offer on or prior to the Expiration
Date, or any defect or irregularity in any tender or withdrawal
with respect to any particular shares or any particular
stockholder (whether or not Purchaser waives similar defects or
irregularities in the case of other stockholders), and
Purchasers interpretation of the terms of the Offer
(including these instructions) will be final and binding on all
parties. In the event a condition is waived with respect to any
particular stockholder, the same condition will be waived with
respect to all stockholders. No tender or withdrawal of shares
will be deemed to have been properly made until all defects or
irregularities have been cured by the tendering or withdrawing
stockholder or waived by Purchaser. Purchaser will not be liable
for failure to waive any condition of the Offer, or any defect
or irregularity in any tender or withdrawal of shares. Unless
waived, any defects or irregularities in connection with tenders
or withdrawals must be cured within the period of time Purchaser
determines.
None of Purchaser, the Dealer Managers, the
Information Agent, the Depositary or any other person will be
obligated to give notice of any defects or irregularities in any
tender or withdrawal, nor will any of the foregoing incur any
liability for failure to give any such notification.
10.
Backup Withholding.
In order to avoid
backup withholding of U.S. federal income tax on payments
of cash pursuant to the Offer, a stockholder surrendering shares
in the Offer must, unless an exemption applies, provide the
Depositary with such stockholders correct taxpayer
identification number (TIN) (
i.e.
, social
security number or employer identification number) on Substitute
Form W-9
included below in this Letter of Transmittal and certify under
penalties of perjury that such TIN is correct and that the
stockholder is not subject to backup withholding. If a
stockholder does not provide a correct TIN or fails to provide
the certifications described above, the Internal Revenue Service
(the IRS) may impose a $50 penalty on such
stockholder and payment of cash to such stockholder pursuant to
the Offer may be subject to backup withholding at the applicable
statutory rate (currently 28%).
Backup withholding is not an additional income tax. Rather, the
amount of the backup withholding can be credited against the
U.S. federal income tax liability of the person subject to
the backup withholding, provided that the required information
is given to the IRS. If backup withholding results in an
overpayment of tax, a refund can be obtained by the stockholder
upon filing an income tax return.
A tendering stockholder is required to give the Depositary the
TIN of the record owner of the shares being tendered. If the
shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9
for additional guidance on which number to report.
The box in part 3 of the Substitute
Form W-9
may be checked if the tendering stockholder has not been issued
a TIN and has applied for a TIN or intends to apply for a TIN in
the near future. If the box in part 3 is checked, the
stockholder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number below in order to avoid
backup withholding. Notwithstanding that the box in part 3
is checked and the Certificate of Awaiting Taxpayer
Identification Number is completed, the Depositary will withhold
the applicable statutory rate (currently 28%) on all payments
made prior to the time a properly certified TIN is provided to
the Depositary.
Some stockholders (including, among others, all corporations and
certain foreign individuals and entities) are not subject to
backup withholding. Foreign stockholders should complete and
sign the main signature form and the appropriate
Form W-8BEN,
Certificate of Foreign Status, a copy of which may be obtained
from the Depositary, or other applicable IRS Form, in order to
avoid backup withholding. See the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9
for more instructions.
11.
Withholding on
Non-United
States Holder.
Even if a
Non-United
States Holder (as defined below) has provided the required
certification to avoid backup withholding, the Depositary will
withhold U.S. federal income taxes equal to 30% of the
gross payments payable to a
Non-United
States Holder or such holders agent unless the Depositary
determines that a reduced rate of withholding is available
pursuant to a tax treaty or that an exemption from withholding
is applicable because such gross proceeds are effectively
connected with the
Non-United
States Holders conduct of a trade or business within the
United States.
13
See Section 13 of the Offer to Purchase. In order to obtain
a reduced rate of withholding pursuant to a tax treaty, a
Non-United
States Holder must deliver to the Depositary before the payment
a properly completed and executed IRS
Form W-8BEN
(or other applicable IRS Form). In order to obtain an exemption
from withholding on the grounds that the gross proceeds paid
pursuant to the Offer are effectively connected with the conduct
of a trade or business within the United States, a
Non-United
States Holder must deliver to the Depositary a properly
completed and executed IRS
Form W-8ECI.
A
Non-United
States Holder may be eligible to obtain a refund of all or a
portion of any tax withheld if such
Non-United
States Holder meets those tests described in Section 13 of
the Offer to Purchase that would characterize the exchange as a
sale (as opposed to a dividend) or is otherwise able to
establish that no tax or a reduced amount of tax is due.
For the purposes of this Instruction 11, a
Non-United
States Holder is any stockholder that for
U.S. federal income tax purposes is not (i) a citizen
or resident of the United States, (ii) a corporation or
partnership created or organized in or under the laws of the
United States or any State or division thereof (including the
District of Columbia), (iii) an estate the income of which
is subject to United States federal income taxation regardless
of the source of such income, or (iv) a trust (a) if a
court within the United States is able to exercise primary
supervision over the administration of the trust and
(b) one or more U.S. persons have the authority to
control all of the substantial decisions of the trust, or
certain trusts considered U.S. persons for federal income
tax purposes.
NON-UNITED
STATES HOLDERS MAY BE SUBJECT TO UNITED STATES WITHHOLDING TAX
AT A 30% RATE ON THE SALE OF SHARES PURSUANT TO THE OFFER,
EVEN IF NO SUCH WITHHOLDING WOULD APPLY IF THOSE SAME
SHARES WERE SOLD ON THE OPEN MARKET.
NON-UNITED
STATES HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS
REGARDING THE APPLICATION OF U.S. FEDERAL INCOME TAX
WITHHOLDING, INCLUDING ELIGIBILITY FOR A WITHHOLDING TAX
REDUCTION OR EXEMPTION, AND THE REFUND PROCEDURE.
12.
Requests for Assistance or Additional
Copies.
Questions and requests for assistance or
additional copies of the Offer to Purchase, this Letter of
Transmittal, and the Guidelines for Certification of Taxpayer
Identification Number on Substitute
Form W-9
may be directed to the Information Agent at its address set
forth on the back page of this Letter of Transmittal. Copies
will be furnished promptly at Purchasers expense.
13.
Lost, Destroyed or Stolen
Certificates.
If any certificate representing
shares has been lost, destroyed or stolen, the stockholder
should promptly notify the Depositary at
(781) 575-3400.
The stockholder will then be instructed by the Depositary as to
the steps that must be taken in order to replace the
certificate. This Letter of Transmittal and related documents
cannot be processed until the procedures for replacing lost,
destroyed or stolen certificates have been followed.
14.
Conditional Tenders.
As described in
Sections 3 and 6 of the Offer to Purchase, stockholders may
condition their tenders on all or a minimum number of their
tendered shares being purchased.
If you wish to make a conditional tender you must indicate this
in the box captioned Conditional Tender in this
Letter of Transmittal. In the box in this Letter of Transmittal,
you must calculate and appropriately indicate the minimum number
of shares that must be purchased if any are to be purchased.
As discussed in Sections 3 and 6 of the Offer to Purchase,
proration may affect whether Purchaser accepts conditional
tenders and may result in shares tendered pursuant to a
conditional tender being deemed withdrawn if the minimum number
of shares would not be purchased. If, because of proration
(because more than the number of shares sought are properly
tendered), the minimum number of shares that you designate will
not be purchased, Purchaser may accept conditional tenders by
random lot, if necessary. However, to be eligible for purchase
by random lot, you must have tendered all of your shares and
check the box so indicating. Upon selection by lot, if any,
Purchaser will limit its purchase in each case to the designated
minimum number of shares.
All tendered shares will be deemed unconditionally tendered
unless the Conditional Tender box is completed.
The conditional tender alternative is made available so that a
stockholder may seek to structure the purchase of shares
pursuant to the offer in such a manner that the purchase will be
treated as a sale of such shares by the stockholder, rather than
the payment of a dividend to the stockholder, for federal income
tax purposes. If you are an odd lot holder and you tender all of
your shares, you cannot conditionally tender, because your
shares will not be subject to proration. It is the tendering
stockholders responsibility to calculate the minimum
number of shares that must be purchased from the stockholder in
order for the stockholder to qualify for sale rather than
dividend treatment. Each stockholder is urged to consult his or
her own tax advisor. See Sections 6 and 13 of the Offer to
Purchase.
14
15.
Odd Lots.
As described in
Section 1 of the Offer to Purchase, if Purchaser is to
purchase fewer than all shares tendered before the Expiration
Date and not properly withdrawn, the shares purchased first will
consist of all shares properly tendered and not properly
withdrawn by any stockholder who owned, beneficially or of
record, an aggregate of fewer than 100 shares, and who
tenders all of the holders shares at or below the purchase
price. This preference will not be available unless the section
captioned Odd Lots is completed.
16.
Order of Purchase in Event of
Proration.
As described in Section 1 of the
Offer to Purchase, stockholders may designate the order in which
their shares are to be purchased in the event of proration. The
order of purchase may have an effect on the U.S. federal
income tax classification of any gain or loss on the shares
purchased. See Sections 1 and 13 of the Offer to Purchase.
IMPORTANT:
THIS LETTER OF TRANSMITTAL,
TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE
OF A BOOK-ENTRY TRANSFER, AN AGENTS MESSAGE, AND ANY OTHER
REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO
THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED
SHARES MUST BE RECEIVED BY THE DEPOSITARY OR
SHARES MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR
BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE.
Purpose
of Substitute
Form W-9
To prevent backup withholding on payments that are made to a
stockholder or other payee with respect to shares of Common
Stock tendered for payment, the stockholder or other payee is
required to notify the Depositary of such stockholders
correct Taxpayer Identification Number, or TIN (or
the TIN of any other payee), by completing the form below
certifying that the TIN provided on Substitute
Form W-9
is correct (or that such stockholder or other payee is awaiting
a TIN), and that (i) such stockholder or other payee is
exempt from backup withholding, (ii) such stockholder or
other payee has not been notified by the Internal Revenue
Service that such stockholder or other payee is subject to
backup withholding as a result of a failure to report all
interest or dividends or (iii) the Internal Revenue Service
has notified such stockholder or other payee that such
stockholder or other payee is no longer subject to backup
withholding.
What
Number to Give the Depositary
The stockholder (or other payee) is required to give the
Depositary the social security number or employer identification
number of the record holder (or any other payee) of the shares
of Common Stock tendered hereby. If the shares of Common Stock
are registered in more than one name or are not in the name of
the actual owner, consult the enclosed
Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9
for additional guidance on which number to report. If the
surrendering stockholder (or other payee) has not been issued a
TIN and has applied for a number or intends to apply for a
number in the near future, the stockholder (or other payee)
should write Applied For in the space provided for
the TIN in Part I, sign and date the Substitute
Form W-9,
and complete the additional Certificate of Awaiting Taxpayer
Identification Number. If Applied For is written in
Part I and the Depositary is not provided with a TIN by the
time of payment, the Depositary will withhold 28% of all
payments to such stockholder (or other payee) until a properly
certified TIN is provided to the Depositary.
15
TO BE
COMPLETED BY ALL STOCKHOLDERS (OR OTHER PAYEES)
(See Instruction 10)
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Payers
Name:
Computershare
Trust Company, N.A.
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SUBSTITUTE
Form
W-9
Department of the Treasury
Internal Revenue Service
Payers Request for
Taxpayer Identification
Number
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Part I
Taxpayer Identification Number For all accounts,
enter taxpayer identification number in the box at right. (For
most individuals, this is your social security number. If you do
not have a number, see
Obtaining a Number
in the enclosed
Guidelines
.) Certify by signing and dating below.
Note:
If the account is in more than one name,
see chart in the enclosed
Guidelines
to determine which
number to give the payer
Part II
For Payees exempt from backup
withholding, see the enclosed
Guidelines
and complete as
instructed therein.
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Social Security Number OR
Employer Identification Number
(If awaiting
Taxpayer Identification Number,
write (Applied For))
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Part III
Certification
Under penalties of
perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer
Identification Number (or I am waiting for a number to be issued
to me);
(2) I am not subject to backup withholding either because
(a) I am exempt from backup withholding, (b) I have
not been notified by the Internal Revenue Service (IRS) that I
am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding;
and
(3) I am a U.S. person (including a U.S. resident
alien).
Certification Instructions
You must cross out
item (2) above if you have been notified by the IRS that
you are subject to backup withholding because of underreporting
interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS that
you were no longer subject to backup withholding, do not cross
out item (2). (Also see instructions in the enclosed
Guidelines
.)
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YOU MUST
COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE
APPLIED FOR IN PART I OF THIS SUBSTITUTE
FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either
(a) I have mailed or delivered an application to receive a
taxpayer identification number to the appropriate Internal
Revenue Service Center or Social Security Administration Office
or (b) I intend to mail or deliver an application in the
near future. I understand that, notwithstanding the information
I provided in Part III of the Substitute
Form W-9
(and the fact that I have completed this Certificate of Awaiting
Taxpayer Identification Number), the Depositary will withhold at
the applicable statutory rate (currently 28%) on all payments
made prior to the time a properly certified TIN is provided to
the Depositary.
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NOTE:
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FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE
FORM W-9
MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO
YOU. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9
FOR ADDITIONAL DETAILS.
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16
GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE
FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER
TO GIVE THE PAYER
. Social Security numbers have
nine digits separated by two hyphens: i.e.
000-00-0000.
Employer identification numbers have nine digits separated by
only one hyphen: i.e.
00-0000000.
The table below will help determine the number to give the payer.
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Give the
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SOCIAL SECURITY
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For this type of account:
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number of
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1.
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An individuals account
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The individual
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2.
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Two or more individuals (joint
account)
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The actual owner of the account or,
if combined funds, the first individual on the account(1)
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3.
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Custodian account of a minor
(Uniform Gift to Minors Act)
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The minor(2)
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4.
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(a) The usual revocable
savings trust account (grantor is also trustee)
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The grantor-trustee(1)
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4.
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(b) So-called trust account
that is not a legal or valid trust under State law
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The owner(3)
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5.
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Sole proprietorship account
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The owner
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Give the
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EMPLOYER IDENTIFICATION
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For this type of account
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number of
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6.
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A valid trust, estate, or pension
trust
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The legal entity (Do not furnish
the identifying number of the personal representative or trustee
unless the legal entity itself is not designated in the account
title.)(4)
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7.
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Corporate account
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The corporation
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8.
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Partnership account held in the
name of the business
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The partnership
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9.
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Association, club, religious,
charitable, or other tax-exempt organization
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The organization
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10.
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A broker or registered nominee
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The broker or nominee
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11.
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Account with the Department of
Agriculture in the name of a public entity (such as a State or
local government, school district, or prison) that receives an
agricultural program
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(1)
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List and circle the name of the
person whose number you furnish.
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(2)
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Circle the minors name and
furnish the minors social security number.
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(3)
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Show the name of the owner. The
name of the business or the doing business as name
may also be entered. Either the social security number or the
employer identification number may be used.
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(4)
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List and circle the name of the
legal trust, estate, or pension trust.
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NOTE:
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If no name is circled when there is more than one name, the
number will be considered to be that of the first name listed.
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17
GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE
FORM W-9
(continued)
Obtaining
a Number
If you dont have a taxpayer identification number or you
dont know your number, obtain
Form SS-5,
Application for a Social Security Number Card, or
Form SS-4,
Application for Employer Identification number, at the local
office of the Social Security Administration or the Internal
Revenue Service and apply for a number.
Payees
Exempt from Backup Withholding
Payees specifically exempted from backup withholding on ALL
dividend and interest payments and on broker transactions
include the following:
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A corporation.
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A financial institution.
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An organization exempt from tax under section 501(a), or an
individual retirement plan, or a custodial account under
section 403(b)(7).
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The United States or any agency or instrumentality thereof.
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A State, the District of Columbia, a possession of the United
States, or any subdivision or instrumentality thereof.
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A foreign government, a political subdivision of a foreign
government, or any agency or instrumentality thereof.
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An international organization or any agency, or instrumentality
thereof.
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A registered dealer in securities or commodities registered in
the U.S. or in a possession of the U.S.
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A real estate investment trust.
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A common trust fund operated by a bank under section 584(a).
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An exempt charitable remainder trust, or a non-exempt trust
described in section 4947(a)(1).
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An entity registered at all times under the Investment Company
Act of 1940.
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A foreign central bank of issue.
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Payments of dividends and patronage dividends not generally
subject to backup withholding include the following:
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Payments to nonresident aliens subject to withholding under
section 1441.
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Payments to partnerships not engaged in a trade or business in
the U.S. and which have at least one nonresident partner.
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Payments of patronage dividends where the amount received is not
paid in money.
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Payments made by certain foreign organizations.
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Section 404(k) distributions made by an ESOP.
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EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE THE SUBSTITUTE
FORM W-9
TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. COMPLETE THE
SUBSTITUTE
FORM W-9
AS FOLLOWS: ENTER YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE
EXEMPT ON THE FACE OF THE FORM, SIGN, DATE AND
RETURN THE FORM TO THE EXCHANGE AGENT.
Certain payments other than interest dividends, and patronage
dividends, that are not subject to information reporting are
also not subject to backup withholding. For details, see the
regulations under sections 6041, 6041A(a), 6042, 6044,
6045, 6049, and 6050A and 6050N and the regulations thereunder.
Privacy Act Notice.
Section 6109
requires most recipients of dividend, interest, or other
payments to give taxpayer identification numbers to payers who
must report the payments to IRS. IRS uses the numbers for
identification purposes. Payers must be given the numbers
whether or not recipients are required to file tax returns.
Payers must generally withhold 28% of taxable interest,
dividend, and certain other payments to a payee who does not
furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer
Identification Number
. If you fail to furnish
your taxpayer identification number to the Exchange Agent, you
are subject to a penalty of $50 for each such failure unless
your failure is due to a reasonable cause and not to willful
neglect.
(2) Civil Penalty for False Information With Respect to
Withholding
. If you make a false statement with
no reasonable basis which results in no imposition of backup
withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying
Information
. Willfully falsifying certificates
or affirmations may subject you to criminal penalties including
fines
and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE
INTERNAL REVENUE SERVICE.
18
Any questions or requests for assistance may be directed to the
Information Agent or the Dealer Managers at their respective
telephone numbers and addresses set forth below. Requests for
additional copies of the Offer to Purchase, this Letter of
Transmittal or related documents may be directed to the
Information Agent at its telephone numbers or address set forth
below. You may also contact your broker, dealer, commercial
bank, trust company or other nominee for assistance concerning
the Offer.
The
Information Agent for the Offer is:
Georgeson
17 State St., 10th Floor
New York, New York 10004
Banks and Brokerage Firms, Please Call:
(212) 440-9800
All Others Call Toll-free:
(866) 314-1598
The
Dealer Managers for the Offer are:
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Merrill Lynch &
Co.
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Deutsche Bank Securities
Inc.
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Special Equity Transactions
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60 Wall Street
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4 World Financial Center
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New York, New York
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New York, New York 10080
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Call Toll Free: (877) 221-7676
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Call Collect:
(609) 818-8000
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Call Toll Free:
(877) 653-2948
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Exhibit
(d)(1)
STOCK
PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this
Agreement
)
dated as of March 2, 2007, by and among Blackstone Capital
Partners (Cayman) Ltd. 1, Blackstone Capital Partners
(Cayman) Ltd. 2 and Blackstone Capital Partners (Cayman) Ltd. 3
(each, a
Seller
and collectively, the
Sellers
), Celanese Corporation, a Delaware
corporation (
Celanese
), and Celanese
International Holdings Luxembourg S.à r.l., a Luxembourg
limited liability company and a wholly owned subsidiary of
Celanese (
CIH
and together with Celanese,
Purchaser
).
RECITALS
WHEREAS, as of the date hereof, Sellers collectively own of
record 22,343,277 shares of Celaneses Series A
common stock, par value $0.0001 (the
Common
Stock
), which constitutes approximately 14% of the
total issued and outstanding shares of Common Stock;
WHEREAS, Celanese intends, but has not made any public
announcement of such intention, to effect a restructuring on
behalf of itself and its subsidiaries (the
Restructuring
), including the refinancing of
the existing credit agreement, conducting two debt tender offers
for outstanding senior discount notes and senior subordinated
notes and conducting a public modified Dutch auction tender
offer, through CIH, commencing on or about March 6, 2007
for up to 11,279,243 shares of its outstanding Common Stock
at prices ranging from $28.00 to $30.50 per share pursuant
to the terms and conditions set forth in the draft Offer to
Purchase, dated March 6, 2007 (the
Offer to
Purchase
), substantially in the form attached hereto
as Annex A (the
Tender Offer
), such
amount, when added to the shares purchased under this Agreement,
to equal, in the aggregate, a target amount of $400 million
of shares of Common Stock;
WHEREAS, Sellers have determined that they will not exercise
their right to tender any of their shares of Common Stock in the
Tender Offer; and
WHEREAS, subsequent to the date of expiration of the Tender
Offer (the
Expiration Date
), Sellers desire
to sell to Purchaser a pro rata portion of Sellers shares
based on the total number of shares tendered and accepted for
purchase in the Tender Offer in a manner more specifically
described below.
NOW, THEREFORE, in consideration of the premises, the
representations, warranties and covenants contained herein, and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
AGREEMENT
1.
Agreement Not to Tender the Pro Rata Shares in the
Tender Offer
.
In consideration of
Purchasers willingness to purchase the Pro Rata Shares (as
defined below) in accordance with the provisions of
Section 2
hereof, Sellers hereby agree that from the
date of commencement of the Tender Offer through the Expiration
Date (the
Lock-up
Period
), Sellers will not directly or indirectly,
including by guaranteed delivery, tender in the Tender Offer, or
otherwise sell, pledge, hypothecate or dispose of any shares of
Common Stock owned by Sellers (including without limitation, any
shares of Common Stock which may be deemed to be beneficially
owned by any Seller in accordance with the rules and regulations
of the Securities and Exchange Commission (the
SEC
), and any shares of Common Stock which
may be issued upon the vesting
and/or
exercise of any stock options, restricted stock or warrants, or
upon conversion or exchange of any convertible or exchangeable
securities or any rights, warrants, options or other securities
that are convertible into, or exercisable or exchangeable for
Common Stock).
2.
Purchase and Sale of the Pro Rata Shares; Waiver
of Fees
.
2.1
Purchase and Sale of the Pro Rata Shares
.
(a) Subject to the completion of the Tender Offer as set
forth below and pursuant to the terms and conditions of this
Agreement, Sellers agree to sell to Purchaser, and Purchaser
agrees to purchase from Sellers 1,835,511 shares of Common
Stock;
provided
,
however
, that if Purchaser
increases or decreases the number of shares subject to purchase
in the Tender Offer from 11,279,243 (any such change in the
amount purchased, a
TO Share Adjustment
), the
aggregate number of shares of Common Stock to be sold by Sellers
to Purchaser shall be increased or decreased, respectively, by
an amount equal to the TO Share Adjustment multiplied by a
fraction, the numerator of which is 22,343,277 and the
denominator of which is 137,299,786 (representing the percentage
of the outstanding shares of Common Stock held of record by
Sellers divided by the total number of
outstanding shares of Common Stock held of record as of the date
hereof by all stockholders of Purchaser other than the Sellers)
(the amount of shares sold by Sellers and purchased by
Purchaser, inclusive of any adjustment, if applicable, the
Pro Rata Shares
).
(b) The allocation of the Pro Rata Shares to be sold by
Sellers pursuant to this
Section 2
shall be pro rata
based on the number of shares of Common Stock held of record by
each Seller, rounded to the nearest whole share, or in such
other proportion as Sellers may agree;
provided
,
however
, that Sellers must notify Purchaser of such
allocation at least one business day prior to the Closing Date
(as defined below).
2.2
Purchase Price
.
(a) The purchase price per share to be paid by Purchaser
for the Pro Rata Shares shall be an amount equal to the per
share purchase price paid by Purchaser for the shares of Common
Stock validly tendered and accepted for purchase by Purchaser in
the Tender Offer (the
Per Share Purchase
Price
).
(b) The aggregate purchase price for the Pro Rata Shares
(the
Aggregate Purchase Price
), shall be an
amount equal the Per Share Purchase Price,
multiplied
by
, the total number of Pro Rata Shares purchased from
Sellers.
3.
Closing
.
Subject to the terms
and conditions hereof, the purchase and sale of the Pro Rata
Shares contemplated by this Agreement (the
Closing
) will take place at the offices of
Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York,
NY 10166-0193
at 10:00 a.m. New York City time on the eleventh business
day following the Expiration Date (the
Closing
Date
), or at such other later date or place as the
parties shall mutually agree. At the Closing, (i) Sellers
will deliver to Purchaser the Pro Rata Shares to be purchased by
Purchaser and (ii) Purchaser shall deliver the Aggregate
Purchase Price to Sellers by wire transfer of immediately
available funds to one or more accounts specified by Sellers at
least one business day prior to the Closing.
4.
Representations and Warranties of
Sellers
.
In order to induce Purchaser to
enter into this Agreement, each Seller hereby represents and
warrants to Purchaser as follows:
4.1
Organization and Corporate Power;
Authorization
.
Each of the Sellers has the
requisite power and authority to execute, deliver and perform
this Agreement and to sell the Pro Rata Shares. This Agreement
is the legal, valid and, assuming due execution by the other
parties hereto, binding obligations of each of the Sellers,
enforceable against each of the Sellers in accordance with its
terms except to the extent that the enforceability thereof may
be limited by (i) principles of public policy,
(ii) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the
enforcement of creditors rights generally, and
(iii) rules of law governing the availability of equitable
remedies.
4.2
Ownership of Pro Rata
Shares
.
Sellers collectively own of record
the number of issued and outstanding shares of Common Stock set
forth in the Recitals to this Agreement. The Pro Rata Shares to
be sold to Purchaser by such Sellers when delivered to Purchaser
shall be free and clear of any liens, claims or encumbrances,
including rights of first refusal and similar claims except for
restrictions of applicable state and federal securities laws.
There are no restrictions on the transfer of such Pro Rata
Shares imposed by any shareholder or similar agreement or any
law, regulation or order, other than applicable state and
federal securities laws.
4.3
No Violation; No Consent
.
The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby
(a) will not constitute a breach or violation of or default
under any judgment, decree or order or any agreement or
instrument of any Seller or to which any Seller is subject,
(b) will not result in the creation or imposition of any
lien upon the Pro Rata Shares to be sold by any Seller, and
(c) will not require the consent of or notice to any
governmental entity or any party to any contract, agreement or
arrangement with any Seller.
4.4
Brokerage
.
There are no claims
for brokerage commissions or finders fees or similar
compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or
on behalf of such Sellers.
5.
Representations and Warranties of
Purchaser
.
In order to induce Sellers to
enter into this Agreement, Purchaser hereby represents and
warrants as follows:
5.1
Organization and Corporate Power;
Authorization
.
Celanese is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware and CIH is a limited liability
company duly formed and validly existing under the laws of
Luxembourg. Purchaser has the requisite power and authority to
execute, deliver and perform this Agreement
2
and to acquire the Pro Rata Shares. Purchaser has sufficient
capital to purchase the Pro Rata Shares hereunder and to
purchase the shares of Common Stock to be purchased pursuant to
the Tender Offer in each case in compliance with
Section 160 of the Delaware General Corporation Law as it
applies to Celanese. The execution, delivery and performance of
this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been approved by
Purchaser. This Agreement and any other agreements, instruments,
or documents entered into by Purchaser pursuant to this
Agreement have been duly executed and delivered by Purchaser and
are the legal, valid and, assuming due execution by the other
parties hereto, binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms except to the
extent that the enforceability thereof may be limited by
(i) principles of public policy, (ii) applicable
bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of
creditors rights generally, and (iii) rules of law
governing the availability of equitable remedies.
5.2
No Violation; No Consent
.
The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby
(a) will not constitute a breach or violation of or default
under any judgment, decree or order or any agreement or
instrument of Purchaser or to which Purchaser is subject, and
(b) will not require the consent of or notice to any
governmental entity or any party to any contract, agreement or
arrangement with Purchaser.
5.3
Brokerage
.
There are no claims
for brokerage commissions or finders fees or similar
compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or
on behalf of Purchaser.
5.4
Capital Stock
.
The authorized
and outstanding capital stock of Celanese, as of March 1,
2007, consists of 159,643,063 shares of Common Stock and
9,600,000 shares of Preferred Stock.
6.
Conditions to Purchasers
Obligations
.
The obligations of Purchaser
under
Section 2
of this Agreement to purchase the
Pro Rata Shares at the Closing from each Seller are subject to
the fulfillment as of the Closing of each of the following
conditions unless waived by Purchaser in accordance with
Section 10.4
:
6.1
Representations and
Warranties
.
The representations and
warranties of such Seller contained in
Section 4
shall be true and correct on and as of the date of the Closing
with the same effect as though such representations and
warranties had been made on and as of the date of Closing.
6.2
Performance
.
Such Seller shall
have performed and complied in all material respects with all
agreements, obligations, and conditions contained in this
Agreement that are required to be performed or complied with by
it on or before the date of Closing.
6.3
Delivery of Pro Rata
Shares
.
Such Seller shall have delivered the
Pro Rata Shares to be sold by it at the Closing, free and clear
of any liens, claims or encumbrances, along with all stock
powers, assignments or any other documents, instruments or
certificates necessary for a valid transfer.
6.4
Further Assurances
.
No
governmental authority shall have advised or notified Purchaser
that the consummation of the transactions contemplated hereunder
would constitute a material violation of any applicable laws or
regulations, which notification or advice shall not have been
withdrawn after the exhaustion of Purchasers good faith
efforts to cause such withdrawal.
7.
Conditions to Each Sellers
Obligations
.
The obligations of each Seller
under
Section 2
of this Agreement to sell the Pro
Rata Shares at the Closing are subject to the fulfillment as of
the Closing of each of the following conditions unless waived by
such Seller in accordance with
Section 10.4
:
7.1
Representations and
Warranties
.
The representations and
warranties of Purchaser contained in Article 3 shall be
true and correct as of the date of Closing with the same effect
as though such representations and warranties had been made on
and as of the date of Closing.
7.2
Performance
.
Purchaser shall
have performed and complied in all material respects with all
agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by
it on or before the date of Closing.
7.3
Payment of Purchase
Price
.
Purchaser shall have delivered the
Aggregate Purchase Price to be paid by Purchaser to the Sellers.
3
7.4
Further Assurances
.
No
governmental authority shall have advised or notified the
Sellers that the consummation of the transactions contemplated
hereunder would constitute a material violation of any
applicable laws or regulations, which notification or advice
shall not have been withdrawn after the exhaustion of the
Sellers good faith efforts to cause such withdrawal.
7.5
Successful Completion of Tender
Offer
.
The Tender Offer has been successfully
completed in accordance with the Offer to Purchase and Purchaser
has purchased pursuant to the Tender Offer shares at a price not
less than the low end of the purchase price range as set forth
in the Offer to Purchase attached hereto as Annex A.
8.
Covenants
.
8.1
No Purchase of Common
Stock
.
Until eleven business days following
the Expiration Date of the Tender Offer, each Seller agrees that
it will not, directly or indirectly, purchase any shares of
Common Stock.
8.2
No Sale of Common
Stock
.
Except as contemplated hereunder, from
the date hereof until the Closing or the termination of this
Agreement, each Seller agrees that it will not, directly or
indirectly, sell any shares of Common Stock.
8.3
Closing Conditions
.
Sellers
and Purchaser shall use their commercially reasonable efforts to
ensure that each of the conditions to Closing are satisfied.
9.
Survival of Representations and Warranties;
Limitation on Liability
.
9.1
Survival of Representations and
Warranties
.
All representations and
warranties hereunder shall survive the Closing.
9.2
Limitation on
Liability
.
Notwithstanding anything to the
contrary contained in this Agreement or any other agreements,
instruments or other documents related to the Tender Offer, in
no event shall any Sellers liability for breach of the
representations, warranties and covenants exceed the portion of
the Aggregate Purchase Price received by such Seller.
10.
Miscellaneous
.
10.1
Adjustments
.
Whenever a
particular number is specified herein, including, without
limitation, number of shares or price per share, such number
shall be adjusted to reflect any stock dividends, stock-splits,
reverse stock-splits, combinations or other reclassifications of
stock or any similar transactions and appropriate adjustments
shall be made with respect to the relevant provisions of this
Agreement so as to fairly and equitably preserve, as far as
practicable, the original rights and obligations of Purchaser
and each of the Sellers under this Agreement.
10.2
Parties in Interest;
Assignment
.
All covenants, agreements,
representations, warranties and undertakings in this Agreement
made by and on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. This
Agreement and the rights and obligations contemplated hereby may
not be assigned, in part or in whole, by Purchaser or by any
Seller.
10.3
Third Party
Beneficiaries
.
The parties hereto intend that
this Agreement shall not benefit or create any right or cause of
action in, or on behalf of, any person, other than the parties
hereto and no person, other than the parties hereto, shall be
entitled to rely on the provisions of this Agreement in any
action, suit, proceedings, hearing or other form.
10.4
Amendments and
Waivers
.
Except as set forth in this
Agreement, changes in or additions to this Agreement may be
made, or compliance with any term, covenant, agreement,
condition or provision set forth herein may be omitted or waived
(either generally or in a particular instance and either
retroactively or prospectively), by a writing executed by each
of the parties hereto;
provided
,
however
, that any
material amendment to this Agreement must also be approved by a
majority of the directors on the Board of Directors of
Purchaser, including a majority of directors that have not been
nominated or elected by Sellers or an affiliate of any Seller.
10.5
Cooperation
.
Purchaser and
each of the Sellers shall, from and after the date hereof,
cooperate in a reasonable manner to effect the purposes of this
Agreement.
4
10.6
Governing Law
.
This Agreement
shall be governed by and construed under the laws of the State
of Delaware without regard to its
conflicts-of-laws
principles. Any legal action or other legal proceeding relating
to this Agreement or the enforcement of any provision of this
Agreement may be brought or otherwise commenced in any state or
federal court located in the State of Delaware. Each party
hereto agrees to the entry of an order to enforce any
resolution, settlement, order or award made pursuant to this
Section 10.6 by the state and federal courts located in the
State of Delaware and in connection therewith hereby waives, and
agrees not to assert by way of motion, as a defense, or
otherwise, any claim that such resolution, settlement, order or
award is inconsistent with or violative of the laws or public
policy of the laws of the State of Delaware or any other
jurisdiction.
10.7
Notices
.
All notices,
demands, requests, consents or approvals (collectively,
Notices
) required or permitted to be given
hereunder or which are given with respect to this Agreement
shall be in writing and shall be personally delivered or mailed,
registered or certified, return receipt requested, postage
prepaid (or by a substantially similar method), or delivered by
a reputable overnight courier service with charges prepaid, or
transmitted by hand delivery or facsimile, addressed as set
forth below, or such other address (and with such other copy) as
such party shall have specified most recently by written notice.
Notice shall be deemed given or delivered on the date of service
or transmission if personally served or transmitted by
facsimile. Notice otherwise sent as provided herein shall be
deemed given or delivered on the third business day following
the date mailed or on the next business day following delivery
of such notice to a reputable overnight courier service.
To Purchaser:
1601 West LBJ Freeway
Dallas, TX
75234-6034
Facsimile No.: 972 443 4461
Attn: Curtis S. Shaw
To the Sellers:
P.O. Box 265 GT.
Mary Street
George Town, Grand Cayman, Cayman Islands
Attention: Jonathan Culshaw
with a copy to
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Simpson Thacher & Bartlett LLP
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425 Lexington Avenue
New York, NY 10017
Facsimile No.:
(212) 455-2502
Attention: William R. Dougherty
10.8
Effect of Headings and Other
Matters
.
The section and paragraph headings
herein are for convenience only and shall not affect the
construction hereof.
10.9
Entire Agreement
.
This
Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter
hereof and supersedes all prior written or oral understandings
or agreements among or between the parties hereto. Each Seller
hereby agrees that, to the extent the terms of this Agreement
conflict with, or are in any way inconsistent with, any
registration rights agreement or other similar agreement
relating to the rights of each such Seller as a holder of shares
of Common Stock, this Agreement supersedes and controls over
such agreement or agreements.
10.10
Severability
.
The invalidity
or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
10.11
Counterparts
.
This Agreement
may be executed in separate counterparts, including by facsimile
or similar transmission, each of which shall be an original and
all of which taken together shall constitute one and the same
agreement.
10.12
Successors and
Assigns
.
Except as otherwise expressly
provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, the successor and assigns of
the parties hereto.
5
10.13
Delays or Omissions
.
It is
agreed that no delay or omission to exercise any right, power or
remedy accruing to any party upon any breach or default of any
other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any
such breach or default, or any acquiescence therein, or of any
similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. It
is further agreed that any waiver, permit, consent or approval
of any kind or character of any breach or default under this
Agreement, or any waiver of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the
extent specifically set forth in writing, and that all remedies,
either under this Agreement, by law or otherwise, shall be
cumulative and not alternative.
10.14
Termination
.
Notwithstanding anything contained in this Agreement to the
contrary, this Agreement may be terminated (i) at any time
prior to the Closing by the mutual written consent of Celanese
and the Sellers and (ii) by the Sellers in their sole
discretion by written notice to Celanese if (A) the Tender
Offer is terminated or (B) the Closing does not occur by
May 1, 2007.
6
IN WITNESS WHEREOF, the undersigned parties have duly executed
and delivered this Agreement as of the date first written above.
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PURCHASER:
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SELLERS:
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CELANESE CORPORATION
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BLACKSTONE CAPITAL PARTNERS
(CAYMAN) LTD. 1
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By:
/s/ KEVIN J. ROGAN
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By:
/s/ BEN JENKINS
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Name:
Kevin J.
Rogan
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Name:
Ben Jenkins
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Title:
Assistant
Secretary
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Title:
Authorized
Person
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CELANESE INTERNATIONAL HOLDINGS
LUXEMBOURG S.À R.L.,
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BLACKSTONE CAPITAL PARTNERS
(CAYMAN) LTD. 2
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By:
/s/ HARRY A. FRANKS
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By:
/s/ BEN JENKINS
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Name:
Harry A. Franks
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Name:
Ben Jenkins
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Title:
Manager
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Title:
Authorized
Person
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BLACKSTONE CAPITAL PARTNERS
(CAYMAN) LTD. 3
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By:
/s/ BEN JENKINS
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Name:
Ben Jenkins
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Title:
Authorized
Person
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Signature Page to Stock Purchase Agreement
7
ANNEX A
Offer to
Purchase