þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2007 | ||
OR | ||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware
(State or Other Jurisdiction of Incorporation or Organization) |
98-0420726
(I.R.S. Employer Identification No.) |
|
1601 West LBJ Freeway, Dallas, TX
(Address of Principal Executive Offices) |
75234-6034
(Zip Code) |
Name of Each Exchange
|
||
Title of Each Class
|
on Which Registered
|
|
Series A Common Stock, par value $0.0001 per share | New York Stock Exchange | |
4.25% Convertible Perpetual Preferred Stock, par value
$0.01 per share (liquidation preference $25.00
per share) |
New York Stock Exchange |
Large Accelerated
Filer
þ
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Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
Page | ||||||||
Special Note Regarding Forward-Looking Statements
|
3 | |||||||
PART I
|
||||||||
Item 1.
|
Business | 3 | ||||||
Item 1A.
|
Risk Factors | 18 | ||||||
Item 1B.
|
Unresolved Staff Comments | 26 | ||||||
Item 2.
|
Properties | 27 | ||||||
Item 3.
|
Legal Proceedings | 29 | ||||||
Item 4.
|
Submission of Matters to a Vote of Security Holders | 29 | ||||||
PART II
|
||||||||
Item 5.
|
Market for the Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities | 30 | ||||||
Item 6.
|
Selected Financial Data | 33 | ||||||
Item 7.
|
Managements Discussion and Analysis of Financial Condition and Results of Operations | 35 | ||||||
Item 7A.
|
Quantitative and Qualitative Disclosures about Market Risk | 65 | ||||||
Item 8.
|
Financial Statements and Supplementary Data | 66 | ||||||
Item 9.
|
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure | 68 | ||||||
Item 9A.
|
Controls and Procedures | 68 | ||||||
Item 9B.
|
Other Information | 70 | ||||||
PART III
|
||||||||
Item 10.
|
Directors and Executive Officers of the Registrant | 70 | ||||||
Item 11.
|
Executive Compensation | 70 | ||||||
Item 12.
|
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 70 | ||||||
Item 13.
|
Certain Relationships and Related Transactions | 70 | ||||||
Item 14
|
Principal Accounting Fees and Services | 70 | ||||||
PART IV
|
||||||||
Item 15.
|
Exhibits and Financial Statement Schedules | 70 | ||||||
Signatures
|
72 |
2
Item 1. | Business |
3
Advanced
|
||||||||
Engineered Materials | Consumer Specialties | Industrial Specialties | Acetyl Intermediates | |||||
2007 Net Sales (1) | $1,030 million | $1,111 million | $1,346 million | $2,955 million | ||||
Key Products
|
Polyacetal products (POM)
Ultra-high molecular weight polyethylene (GUR) Liquid crystal polymers (Vectra) Polyphenylene sulfide (PPS) (Fortron) Polybutylene terephthalate (PBT) Polyester engineering resins Long fiber reinforced thermoplastics |
Acetate tow
Sunett ® sweetener Sorbates |
Polyvinyl alcohol (PVOH)
Emulsions Low-density polyethylene resins Ethylene vinyl acetate (EVA) resins and compounds |
Acetic acid
Vinyl acetate monomer (VAM) Acetic anhydride Acetate esters Carboxylic acids Amines Polyvinyl acetate |
||||
Major End-Use Markets
|
Fuel system components
Conveyor belts
Battery separators Electronics Seat belt mechanisms
Other automotive
Appliances and electronics
Filtrations
Coatings Medical Telecommunications |
Filter products
Beverages Confections Baked goods Pharmaceuticals |
Paints
Coatings Adhesives Building products Glass fibers Textiles Paper Flexible packaging Lamination products Medical tubing Automotive parts |
Paints
Coatings Adhesives Lubricants Detergents Pharmaceuticals Films Textiles Inks Plasticizers Esters Solvents |
(1) | Consolidated net sales of $6,444 million for the year ended December 31, 2007 also includes $2 million in net sales from Other Activities, which is attributable to our captive insurance companies. Acetyl Intermediates net sales exclude inter-segment sales of $660 million for the year ended December 31, 2007. |
4
5
6
7
Year Ended | ||||||||||||||||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||||||||||||||
2007 | 2006 | 2005 | ||||||||||||||||||||||
% of
|
% of
|
% of
|
||||||||||||||||||||||
$ | Segment | $ | Segment | $ | Segment | |||||||||||||||||||
(In millions, except percentages) | ||||||||||||||||||||||||
North America
|
388 | 38 | % | 311 | 34 | % | 339 | 38 | % | |||||||||||||||
Europe/Africa
|
517 | 50 | % | 500 | 55 | % | 465 | 53 | % | |||||||||||||||
Asia/Australia
|
88 | 8 | % | 55 | 6 | % | 44 | 5 | % | |||||||||||||||
Rest of World
|
37 | 4 | % | 49 | 5 | % | 39 | 4 | % |
8
9
Year Ended | ||||||||||||||||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||||||||||||||
2007 | 2006 | 2005 | ||||||||||||||||||||||
% of
|
% of
|
% of
|
||||||||||||||||||||||
$ | Segment | $ | Segment | $ | Segment | |||||||||||||||||||
(In millions, except percentages) | ||||||||||||||||||||||||
North America
|
195 | 18 | % | 198 | 23 | % | 184 | 22 | % | |||||||||||||||
Europe/Africa
|
426 | 38 | % | 248 | 28 | % | 283 | 34 | % | |||||||||||||||
Asia/Australia
|
435 | 39 | % | 393 | 45 | % | 343 | 41 | % | |||||||||||||||
Rest of World
|
55 | 5 | % | 37 | 4 | % | 29 | 3 | % |
10
Year Ended | ||||||||||||||||||||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||||||||||||||||||
2007 | 2006 | 2005 | ||||||||||||||||||||||||||
% of
|
% of
|
% of
|
||||||||||||||||||||||||||
$ | Segment | $ | Segment | $- | Segment | |||||||||||||||||||||||
(In millions, except percentages) | ||||||||||||||||||||||||||||
North America
|
583 | 43 | % | 605 | 47 | % | 446 | 42 | % | |||||||||||||||||||
Europe/Africa
|
674 | 50 | % | 600 | 47 | % | 559 | 53 | % | |||||||||||||||||||
Asia/Australia
|
68 | 5 | % | 58 | 5 | % | 42 | 4 | % | |||||||||||||||||||
Rest of World
|
21 | 2 | % | 18 | 1 | % | 14 | 1 | % |
11
| Acetic acid, used to manufacture VAM, other acetyl derivatives and various other end uses, including purified terephthalic acid (PTA). We manufacture acetic acid for our own use, as well as for sale to third parties, including other participants in the acetyl derivatives business; | |
| VAM, used in a variety of adhesives, paints, films, coatings and textiles. We manufacture VAM for our own use, as well as for sale to third parties; | |
| Acetic anhydride, a raw material used in the production of cellulose acetate, detergents and pharmaceuticals. We manufacture acetic anhydride for our own use, as well as for sale to third parties; and | |
| Acetaldehyde, a major feedstock for the production of polyols. Acetaldehyde is also used in other organic compounds such as pyridines, which are used in agricultural products. |
| Ethyl acetate, an acetate ester that is a solvent used in coatings, inks and adhesives and in the manufacture of photographic films and coated papers; | |
| Butyl acetate, an acetate ester that is a solvent used in inks, pharmaceuticals and perfume; | |
| Methyl ethyl ketone, a solvent used in the production of printing inks and magnetic tapes; |
12
| Formaldehyde, paraformaldehyde, and formcels are primarily used to produce adhesive resins for plywood, particle board, coatings, POM engineering resins and a compound used in making polyurethane; | |
| Amines such as methyl amines, monisopropynol amines and butyl amines are used in agrochemicals, herbicides and the treatment of rubber and water; and | |
| Special solvents, such as crotonaldehyde, which are used by the Nutrinova business line for the production of sorbates, as well as raw materials for the fragrance and food ingredients industry. |
Year Ended | ||||||||||||||||||||||||
December 31,
|
December 31,
|
December 31,
|
||||||||||||||||||||||
2007 | 2006 | 2005 | ||||||||||||||||||||||
% of
|
% of
|
% of
|
||||||||||||||||||||||
$ | Segment | $ | Segment | $ | Segment | |||||||||||||||||||
(In millions, except percentages) | ||||||||||||||||||||||||
North America
|
685 | 23 | % | 685 | 26 | % | 771 | 31 | % | |||||||||||||||
Europe/Africa
|
1,183 | 40 | % | 1,076 | 40 | % | 811 | 33 | % | |||||||||||||||
Asia/Australia
|
946 | 32 | % | 789 | 29 | % | 722 | 30 | % | |||||||||||||||
Rest of World
|
141 | 5 | % | 134 | 5 | % | 147 | 6 | % |
13
Name
|
Location
|
Ownership
|
Segment
|
Partner(s)
|
Year Entered
|
|||||||||
Equity Investments
|
||||||||||||||
KEPCO
|
South Korea | 50% |
Advanced Engineered
Materials |
Mitsubishi Gas Chemical
Company, Inc. |
1999 | |||||||||
Polyplastics Co., Ltd.
|
Japan | 45% |
Advanced Engineered
Materials |
Daicel Chemical Industries
Ltd. |
1964 | |||||||||
Fortron Industries LLC
|
US | 50% |
Advanced Engineered
Materials |
Kureha Corporation | 1992 | |||||||||
Cost Investments
|
||||||||||||||
National Methanol Co.
|
Saudi Arabia | 25% | Acetyl Intermediates |
Saudi Basic Industries Corporation (SABIC)/
CTE Petrochemicals |
1981 | |||||||||
Kunming Cellulose Fibers Co. Ltd.
|
China | 30% | Consumer Specialties |
China National
Tobacco Corp. |
1993 | |||||||||
Nantong Cellulose Fibers Co. Ltd.
|
China | 31% | Consumer Specialties |
China National
Tobacco Corp. |
1986 | |||||||||
Zhuhai Cellulose Fibers Co. Ltd.
|
China | 30% | Consumer Specialties |
China National
Tobacco Corp. |
1993 |
14
15
16
Employees as of December 31, | ||||||||||||
2007 | 2006 | 2005 | ||||||||||
North America
|
4,350 | 4,700 | 4,900 | |||||||||
thereof USA
|
3,200 | 3,300 | 3,500 | |||||||||
thereof Canada
|
250 | 500 | 600 | |||||||||
thereof Mexico
|
900 | 900 | 800 | |||||||||
Europe
|
3,500 | 3,900 | 4,100 | |||||||||
thereof Germany
|
1,700 | 2,600 | 2,800 | |||||||||
Asia
|
500 | 250 | 200 | |||||||||
Rest of World
|
50 | 50 | 100 | |||||||||
Total Employees
|
8,400 | 8,900 | 9,300 | |||||||||
17
18
| Shortages of raw materials due to increasing demand, e.g., from growing uses or new uses; | |
| Capacity constraints, e.g., due to construction delays, strike action or involuntary shutdowns; | |
| The general level of business and economic activity; and | |
| The direct or indirect effect of governmental regulation. |
19
20
21
22
23
24
| increasing vulnerability to general economic and industry conditions; | |
| requiring a substantial portion of cash flow from operations to be dedicated to the payment of principal and interest on indebtedness, therefore reducing our ability to use our cash flow to fund operations, capital expenditures and future business opportunities; | |
| exposing us to the risk of increased interest rates as certain of our borrowings are at variable rates of interest; | |
| limiting our ability to obtain additional financing for working capital, capital expenditures, product development, debt service requirements, acquisitions and general corporate or other purposes; and | |
| limiting our ability to adjust to changing market conditions and placing us at a competitive disadvantage compared to our competitors who have less debt. |
25
Item 1B. | Unresolved Staff Comments |
26
28
40
46
F-37
Item 2.
Properties
Leased
Administrative offices
Leased
Corporate headquarters
Leased
Administrative offices
Owned
Administrative offices
Leased
Automotive Development Center
Owned
POM (Celcon), GUR, Compounding
Owned
Compounding
Venture owned by InfraServ GmbH & Co. Kelsterbach KG, in
which CAG holds a 100.0% limited partnership interest
LFT (Celstran), POM (Hostaform), Compounding
Leased
PE-UHMW
(GUR)
Owned
LCP, PBT and PET (Celanex), Compounding
Owned
Compounding
Venture owned by Fortron Industries LLC, a non-consolidated
venture, in which we have a 50% interest, except for adjacent
administrative office space which is leased by the venture
PPS (Fortron)
Owned
LFT (Celstran)
Owned
Tow
Owned
Tow, Flake
Owned
Tow, Flake
Owned
Tow, Flake and Films
Venture owned by InfraServ GmbH & Co. Hoechst KG, in which
CAG holds a 31.2% limited partnership interest
Sorbates,
Sunett
®
Owned
Conventional emulsions
Leased
PVOH
Owned
Conventional emulsions, Vinyl acetate ethylene emulsions
27
Venture owned by InfraServ GmbH & Co. Hoechst KG, in which
CAG holds a 31.2% limited partnership interest
Conventional emulsions, Vinyl acetate ethylene emulsions
Owned
Vinyl acetate ethylene emulsions
Owned
PVOH, Polyvinyl acetate
Owned
Vinyl acetate ethylene emulsions, Conventional emulsions
Leased
Vinyl acetate ethylene emulsions, Conventional emulsions
Leased
PVOH
Owned
Conventional emulsions
Venture owned by Complejo Industrial Taqsa AIE, in which CAG
holds a 15.0% share
Vinyl acetate ethylene emulsions, Conventional emulsions, PVOH
Owned
Conventional emulsions, Vinyl acetate ethylene emulsions
Owned
Conventional emulsions, Vinyl acetate ethylene emulsions
Leased
Butyl acetate, Iso-butylacetate, Propylacetate, VAM, Carboxylic
acids, n/i- Butyraldehyde, Butyl alcohols, Propionaldehyde,
Propyl alcohol
Owned
Formaldehyde, Polyols
Owned
Acetic anhydride, Acetone derivatives, Ethyl acetate, VAM,
Methyl amines
Owned
Acetic acid, VAM
Venture owned by InfraServ GmbH & Co. Hoechst KG, in which
CAG holds a 31.2% Limited partnership interest
Acetaldehyde, VAM, Butyl acetate
Leased
Acetic acid, Acetic anhydride
Owned
Acetic acid, Acetic anhydride, Ethyl acetate
Owned
Acetic acid, VAM
Leased
Acetic anhydride
Leased
Acetic acid, Butyl acetate, Ethyl acetate, VAM
Leased
Acetic acid
Venture owned by Complejo Industrial Taqsa AIE, in which CAG
holds a 15.0% share
VAM
(1)
Acquired in the January 2007 Acetate Products Limited
acquisition.
Item 3.
Legal
Proceedings
Item 4.
Submission
of Matters to a Vote of Security Holders
29
Item 5.
Market
for the Registrants Common Equity, Related Stockholder
Matters and Issuer Purchases of Equity Securities
Price Range
High
Low
$
32.00
$
24.50
$
39.43
$
30.59
$
42.49
$
30.70
$
44.77
$
35.16
$
22.00
$
18.82
$
22.75
$
18.50
$
20.70
$
16.80
$
26.33
$
17.45
30
31
Number of Securities to be
Weighted Average
Issued upon Exercise of
Exercise Price of
Outstanding Options,
Outstanding Options,
Warrants and Rights
Warrants and Rights
8,125,127
$
18.72
1,141,938
9,267,065
32
Item 6.
Selected
Financial Data
33
Nine Months
Three Months
Ended
Ended
Year Ended
Year Ended December 31,
December 31,
March 31,
December 31,
2007
2006
2005
2004
2004
2003
(In $ millions, except per share and per share data)
6,444
5,778
5,270
3,206
1,058
3,891
(58
)
(10
)
(61
)
(78
)
(28
)
(3
)
748
620
486
17
39
58
447
526
276
(230
)
62
137
336
319
214
(292
)
48
105
90
87
63
39
30
44
(1
)
426
406
277
(253
)
78
148
2.11
1.95
1.32
(2.94
)
0.97
2.12
1.96
1.86
1.29
(2.94
)
0.97
2.12
566
751
701
(62
)
(102
)
401
143
(268
)
(907
)
(1,811
)
91
(275
)
(714
)
(108
)
(144
)
2,686
(43
)
(108
)
827
824
758
743
689
659
8,058
7,895
7,445
7,410
6,613
6,814
3,556
3,498
3,437
3,387
587
637
1,062
787
235
(112
)
2,622
2,582
291
269
267
165
64
272
306
244
203
134
29
177
0.16
0.16
0.08
0.48
(1)
Trade working capital is defined as trade accounts receivable
from third parties and affiliates net of allowance for doubtful
accounts, plus inventories, less trade accounts payable to third
parties and affiliates. Trade working capital is calculated in
the table below:
December 31,
March 31,
December 31,
2007
2006
2005
2004
2004
2003
(In $ millions)
1,009
1,001
919
866
810
768
636
653
650
603
491
514
(818
)
(830
)
(811
)
(726
)
(612
)
(623
)
827
824
758
743
689
659
(2)
In the nine months ended December 31, 2004, CAG declared
and paid a dividend of 0.12 ($0.14) per share for the year
ended December 31, 2003. Dividends paid to Celanese and its
consolidated subsidiaries eliminate in consolidation.
(3)
Amounts include accrued capital expenditures (see Note 25).
Amounts do not include capital expenditures related to capital
lease obligations.
34
Item 7.
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
changes in general economic, business, political and regulatory
conditions in the countries or regions in which we operate;
the length and depth of product and industry business cycles
particularly in the automotive, electrical, electronics and
construction industries;
35
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;
the ability to pass increases in raw material prices on to
customers or otherwise improve margins through price increases;
the ability to maintain plant utilization rates and to implement
planned capacity additions and expansions;
the ability to reduce production costs and improve productivity
by implementing technological improvements to existing plants;
increased price competition and the introduction of competing
products by other companies;
changes in the degree of intellectual property and other legal
protection afforded to our products;
compliance costs and potential disruption or interruption of
production due to accidents or other unforeseen events or delays
in construction of facilities;
potential liability for remedial actions under existing or
future environmental regulations;
potential liability resulting from pending or future litigation,
or from changes in the laws, regulations or policies of
governments or other governmental activities in the countries in
which we operate;
changes in currency exchange rates and interest rates; and
various other factors, both referenced and not referenced in
this document.
36
Total From
Year Ended December 31,
Inception through
2007
2006
December 31, 2007
(In $ millions)
26
26
5
(1)
5
40
(1)
40
(1)
Amounts expensed and capitalized during the year ended
December 31, 2006 were approximately $0.2 million and
$0.3 million, respectively.
37
The Squeeze-Out (as defined in Note 2 to the consolidated
financial statements) was approved by the affirmative vote of
the majority of the votes cast at CAGs annual general
meeting in May 2006. As a result of the effective registration
of the Squeeze-Out in the commercial register in Germany in
December 2006, we acquired the remaining 2% of CAG in January
2007.
We relocated the strategic management of the Acetyl
Intermediates segment to Shanghai, China.
On April 2, 2007, we, through certain of our subsidiaries,
entered into a new senior credit agreement. The new senior
credit agreement consists of $2,280 million of US dollar
denominated and 400 million of Euro denominated term
loans due 2014, a $650 million revolving credit facility
terminating in 2013 and a $228 million credit-linked
revolving facility terminating in 2014. See additional
information, including the
38
On May 14, 2007, the Original Shareholders sold their
remaining 22,106,597 shares of Series A common stock
in a registered public secondary offering pursuant to the
universal shelf registration statement on
Form S-3
filed with the Securities and Exchange Commission
(SEC) on May 9, 2006. As of December 31,
2007, the Original Shareholders have no remaining ownership
interest in our Company.
During 2007, we repurchased 10,838,486 shares
(approximately $403 million) of our Series A common
stock through various programs. We completed purchasing shares
under these programs during July 2007. See additional
information in Note 18 to the consolidated financial
statements.
In December 2007, we received a one time payment in resolution
of commercial disputes with a vendor. This payment is included
as a component of Other (charges) gains, net for the year ended
December 31, 2007.
Year Ended December 31,
2007
2006
2005
(In $ millions, except percentages)
6,444
5,778
5,270
1,445
1,309
1,206
(516
)
(536
)
(512
)
(58
)
(10
)
(61
)
748
620
486
82
76
51
(262
)
(293
)
(285
)
(256
)
(1
)
(102
)
116
79
90
447
526
276
336
319
214
90
87
63
426
406
277
291
269
267
11.6
%
10.7
%
9.2
%
6.9
%
9.1
%
5.2
%
(1)
Defined as operating profit divided by net sales.
39
As of December 31,
2007
2006
(In $ millions)
272
309
3,284
3,189
3,556
3,498
825
791
2,731
2,707
Year Ended December 31,
2007
2006
(In $ millions)
(32
)
(12
)
(11
)
1
(74
)
4
5
40
31
(9
)
(5
)
(2
)
(4
)
(58
)
(10
)
(1)
Included in this amount is $6 million of goodwill
impairment (see Note 11 to the consolidated financial
statements).
41
42
Year Ended December 31,
2006
2005
(In $ millions)
(12
)
(18
)
1
(4
)
(12
)
5
34
(25
)
(4
)
(36
)
(10
)
(61
)
43
44
Year Ended December 31,
Year Ended December 31,
Change
Change
2007
2006
in $
2006
2005
in $
(In $ millions)
1,030
915
115
915
887
28
1,111
876
235
876
839
37
1,346
1,281
65
1,281
1,061
220
3,615
3,351
264
3,351
2,911
440
2
22
(20
)
22
32
(10
)
(660
)
(667
)
7
(667
)
(460
)
(207
)
6,444
5,778
666
5,778
5,270
508
(4
)
6
(10
)
6
8
(2
)
(4
)
(4
)
(9
)
9
(23
)
(11
)
(12
)
(11
)
(7
)
(4
)
72
72
(9
)
9
(64
)
(5
)
(59
)
(5
)
(44
)
39
(35
)
(35
)
(58
)
(10
)
(48
)
(10
)
(61
)
51
133
145
(12
)
145
60
85
199
165
34
165
128
37
28
44
(16
)
44
(4
)
48
616
456
160
456
486
(30
)
(228
)
(190
)
(38
)
(190
)
(184
)
(6
)
748
620
128
620
486
134
Continuing Operations
Before Tax and Minority
Interests
189
201
(12
)
201
116
85
235
185
50
185
127
58
28
43
(15
)
43
(4
)
47
694
519
175
519
555
(36
)
(699
)
(422
)
(277
)
(422
)
(518
)
96
447
526
(79
)
526
276
250
45
Year Ended December 31,
Year Ended December 31,
Change
Change
2007
2006
in $
2006
2005
in $
(In $ millions)
69
65
4
65
60
5
51
39
12
39
41
(2
)
59
59
59
47
12
106
101
5
101
110
(9
)
6
5
1
5
9
(4
)
291
269
22
269
267
2
Volume
Price
Currency
Other
Total
In percentages
9
(1
)
5
13
(4
)
4
1
26
(b)
27
(1
)
2
5
(1
)
(c)
5
(5
)
9
4
8
(2
)
6
4
4
12
Volume
Price
Currency
Other
Total
In percentages
6
(1
)
(2
)
(d)
3
1
3
4
1
3
1
16
(e)
21
3
5
1
6
(f)
15
3
4
1
2
10
(a)
Includes the effects of the captive insurance companies.
(b)
Includes net sales from the APL acquisition.
(c)
Includes loss of sales related to the AT Plastics Films
business.
(d)
Includes loss of sales related to COC divestiture.
(e)
Includes net sales from AT Plastic business.
(f)
Includes net sales from the Acetex business.
Year Ended December 31,
Change
2007
2006
in $
In $ millions (except for percentages)
1,030
915
115
9
%
(1
)%
5
%
0
%
133
145
(12
)
12.9
%
15.8
%
(4
)
6
(10
)
189
201
(12
)
69
65
4
47
Year Ended December 31,
Change
2007
2006
in $
In $ millions (except for percentages)
1,111
876
235
(4
)%
4
%
1
%
26
%
199
165
34
17.9
%
18.8
%
(4
)
(4
)
235
185
50
51
39
12
48
Year Ended December 31,
Change
2007
2006
in $
In $ millions (except for percentages)
1,346
1,281
65
(1
)%
2
%
5
%
(1
)%
28
44
(16
)
2.1
%
3.4
%
(23
)
(11
)
(12
)
28
43
(15
)
59
59
49
Year Ended December 31,
Change
2007
2006
in $
In $ millions (except for percentages)
3,615
3,351
264
(5
)%
9
%
4
%
0
%
616
456
160
17
%
13.6
%
72
72
694
519
175
106
101
5
50
Year Ended December 31,
Change
2006
2005
in $
In $ millions (except for percentages)
915
887
28
6
%
0
%
(1
)%
(2
)%
145
60
85
15.8
%
6.8
%
6
8
(2
)
201
116
85
65
60
5
51
Year Ended December 31,
Change
2006
2005
in $
In $ millions (except for percentages)
876
839
37
1
%
3
%
0
%
0
%
165
128
37
18.8
%
15.3
%
(9
)
9
185
127
58
39
41
(2
)
52
Year Ended December 31,
Change
2006
2005
in $
In $ millions (except for percentages)
1,281
1,061
220
1
%
3
%
1
%
16
%
44
(4
)
48
3.4
%
(0.4
)%
(11
)
(7
)
(4
)
43
(4
)
47
59
47
12
53
Year Ended December 31,
Change
2006
2005
in $
In $ millions (except for percentages)
3,351
2,911
440
3
%
5
%
1
%
6
%
456
486
(30
)
13.6
%
16.7
%
(9
)
9
519
555
(36
)
101
110
(9
)
54
55
56
57
Expiration per Period
Less Than
After 5
Total
1 Year
Years 2 & 3
Years 4 & 5
Years
(In $ millions)
2,855
29
57
57
2,712
1,662
242
456
438
526
110
4
8
10
88
593
239
77
60
217
5,220
514
598
565
3,543
303
64
85
62
92
3,156
748
1,031
636
741
236
236
448
260
81
49
58
9,363
1,586
1,795
1,312
4,670
(1)
For future interest expense, we assumed no change in variable
rates. See Note 15 to the consolidated financial statements
for the applicable interest rates.
(2)
Does not include a $2 million reduction due to purchase
accounting.
(3)
Due to uncertainties in the timing of the effective settlement
of tax positions with the respective taxing authorities, we are
unable to determine the timing of payments related to our
Financial Accounting Standards Board (FASB)
Interpretation No. 48,
Accounting for Uncertainty
in Income Taxes, an interpretation of FASB Statement
No. 109
(FIN 48) obligations,
including interest and penalties. These amounts are therefore
reflected in After 5 Years.
58
Expiration per Period
Less Than
After 5
Total
1 Year
Years 2 & 3
Years 4 & 5
Years
(In $ millions)
34
7
16
11
129
129
163
136
16
11
59
60
61
62
63
64
Item 7A.
Quantitative
and Qualitative Disclosures about Market Risk
65
Item 8.
Financial
Statements and Supplementary Data
66
Three Months Ended
March 31,
June 30,
September 30,
December 31,
2007
2007
2007
2007
(Unaudited)
(In $ millions, except for share and per share data)
1,555
1,556
1,573
1,760
(1
)
(105
)
(12
)
60
206
71
147
324
171
(168
)
131
313
122
(124
)
130
208
79
7
(2
)
6
201
(117
)
128
214
1.25
(0.76
)
0.84
1.39
1.15
(0.76
)
0.76
1.27
Three Months Ended
March 31,
June 30,
September 30,
December 31,
2006
2006
2006
2006
(Unaudited)
(In $ millions, except for share and per share data)
1,420
1,457
1,471
1,430
(12
)
2
156
152
172
140
117
134
150
125
87
95
88
49
30
8
21
28
117
103
109
77
0.72
0.64
0.67
0.47
0.67
0.60
0.64
0.45
67
Item 9.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
Item 9A.
Controls
and Procedures
68
Celanese Corporation:
69
Item 9B.
Other
Information
Item 10.
Directors,
Executive Officers and Corporate Governance
Item 11.
Executive
Compensation
Item 12.
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
Item 13.
Certain
Relationships and Related Transactions and Director
Independence
Item 14.
Principal
Accounting Fees and Services
Item 15.
Exhibits
and Financial Statement Schedule
Page Number
F-2
F-3
F-4
F-5
F-6
F-7
70
71
By:
Title:
Chairman of the Board of
Chairman of the Board of Directors, Chief Executive Officer
(Principal Executive Officer)
February 29, 2008
Senior Vice President, Chief Financial Officer (Principal
Financial Officer)
February 29, 2008
Vice President, Controller
(Principal Accounting Officer)
February 29, 2008
Director
February 29, 2008
Director
February 29, 2008
Director
February 29, 2008
72
Director
February 29, 2008
Director
February 29, 2008
Director
February 29, 2008
Director
February 29, 2008
Director
February 29, 2008
Director
February 29, 2008
73
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-1
F-2
Year Ended December 31,
2007
2006
2005
(In $ millions, except for share and per share data)
6,444
5,778
5,270
(4,999
)
(4,469
)
(4,064
)
1,445
1,309
1,206
(516
)
(536
)
(512
)
(72
)
(66
)
(51
)
(73
)
(65
)
(86
)
(58
)
(10
)
(61
)
2
(3
)
20
(9
)
(10
)
748
620
486
82
76
51
(262
)
(293
)
(285
)
(256
)
(1
)
(102
)
44
37
37
116
79
90
(25
)
8
(1
)
447
526
276
(110
)
(203
)
(24
)
337
323
252
(1
)
(4
)
(38
)
336
319
214
40
130
96
52
5
(2
)
(48
)
(33
)
90
87
63
426
406
277
(10
)
(10
)
(10
)
416
396
267
2.11
1.95
1.32
0.58
0.55
0.41
2.69
2.50
1.73
1.96
1.86
1.29
0.53
0.50
0.38
2.49
2.36
1.67
154,475,020
158,597,424
154,402,575
171,227,997
171,807,599
166,200,048
F-3
F-4
2007
2006
2005
Shares
Shares
Shares
Outstanding
Amount
Outstanding
Amount
Outstanding
Amount
(In $ millions, except share data)
158,668,666
158,562,161
99,377,884
(99,377,884
)
7,400
151,062,161
4,265,221
106,505
(10,838,486
)
7,500,000
152,102,801
158,668,666
158,562,161
9,600,000
9,600,000
9,600,000
9,600,000
9,600,000
9,600,000
10,838,486
(403
)
10,838,486
(403
)
362
337
158
4
3
5
(13
)
(8
)
752
233
12
15
20
2
(804
)
88
2
469
362
337
394
24
(253
)
426
406
277
(25
)
(26
)
(10
)
(10
)
14
799
394
24
31
(126
)
(17
)
17
13
3
(117
)
70
5
5
(41
)
2
120
269
(132
)
197
31
(126
)
1,062
787
235
426
406
277
17
13
3
(117
)
70
5
5
(41
)
2
120
269
592
695
168
F-5
Year Ended December 31,
2007
2006
2005
(In $ millions)
426
406
277
30
(34
)
30
311
323
325
23
125
(85
)
(68
)
(8
)
7
256
102
(7
)
61
53
(84
)
10
5
(69
)
(9
)
35
(27
)
19
25
66
(5
)
(21
)
(11
)
(22
)
9
(280
)
(115
)
(61
)
566
751
701
(288
)
(244
)
(203
)
(269
)
(918
)
715
23
48
26
(21
)
69
95
221
(59
)
(65
)
(149
)
46
(42
)
(18
)
87
(50
)
(43
)
7
143
(268
)
(907
)
(804
)
764
233
30
13
22
2,904
38
1,151
(3,053
)
(125
)
(1,375
)
(240
)
(83
)
(403
)
(31
)
69
2
(35
)
(36
)
(21
)
14
(714
)
(108
)
(144
)
39
26
(98
)
34
401
(448
)
791
390
838
825
791
390
F-6
1.
Description
of the Company
2.
Acquisition
of CAG
F-7
F-8
3.
Summary
of Accounting Policies
F-9
20 years
30 years
20 years
F-10
F-11
F-12
F-13
F-14
Ownership Percentage
December 31,
December 31,
2007
2006
100
%
98
%
0
%
98
%
76
%
76
%
50
%
50
%
(1)
The Company acquired the remaining shares of Celanese GmbH in
conjunction with the Squeeze-Out, as discussed in Note 2.
(2)
This entity was sold as part of the Companys sale of its
oxo products and derivatives businesses, as discussed in
Note 5.
(3)
The Company has a 60% voting interest and the right to appoint a
majority of the board of management of Synthesegasanlage Ruhr
GmbH, which results in the Company controlling this entity and,
accordingly, the Company is consolidating this entity in its
consolidated financial statements.
F-15
4.
Recent
accounting pronouncements
F-16
5.
Acquisitions,
ventures and divestitures
F-17
F-18
F-19
(In $ millions)
145
75
8
125
139
21
42
10
565
4
19
23
(1)
Includes the Companys 50% investment in EOXO and the 50%
interest in EOXO purchased from Degussa in February 2007.
F-20
Year Ended December 31,
2007
(1)
2006
2005
(In $ millions)
197
891
845
(152
)
(759
)
(742
)
45
132
103
40
130
96
52
5
(13
)
(46
)
(33
)
11
(2)
(2
)
90
87
63
(1)
The year ended December 31, 2007 includes only two months
of operations for the oxo products and derivatives businesses as
these businesses were sold on February 28, 2007.
(2)
Income tax benefit on gain from disposal of discontinued
operations of $11 million is comprised of $29 million tax
expense related to the divestiture of facilities in the US,
offset by $40 million tax benefit on the divestiture of
facilities and investments in Germany.
6.
Securities
Available for Sale
F-21
Amortized
Unrealized
Unrealized
Fair
Cost
Gain
Loss
Value
(In $ millions)
67
5
72
33
(1
)
32
100
5
(1
)
104
7
7
78
26
104
46
46
231
31
(1
)
261
69
1
(1
)
69
54
(1
)
53
123
1
(2
)
122
10
10
59
11
70
58
(1
)
57
6
6
256
12
(3
)
265
Amortized
Fair
Cost
Value
(In $ millions)
18
18
42
42
26
26
67
71
153
157
F-22
7.
Receivables,
Net
As of December 31,
2007
2006
(In $ millions)
1,027
1,017
(18
)
(16
)
1,009
1,001
35
85
402
390
1,446
1,476
8.
Inventories
As of December 31,
2007
2006
(In $ millions)
500
500
29
33
107
120
636
653
F-23
9.
Investments
Ownership Percentage
Carrying Value
Share of Earnings (Loss)
As of December 31,
As of December 31,
Year Ended December 31,
Segment
2007
2006
2007
2006
2007
2006
2005
(In percent)
(In $ millions)
Acetyl Intermediates
51.0
51.0
(10
)
Acetyl Intermediates
50.0
26
2
10
10
Acetyl Intermediates
45.0
45.0
1
1
(1
)
Advanced Engineered
Materials
50.0
50.0
73
63
16
14
11
Advanced Engineered
Materials
50.0
50.0
170
160
14
13
14
Advanced Engineered
Materials
45.0
45.0
170
136
25
26
24
Other Activities
39.0
39.0
30
26
5
4
4
Other Activities
31.2
31.2
154
136
18
14
7
Other Activities
28.2
28.2
23
18
4
1
1
Consumer Specialties
10.0
10.0
4
4
1
625
570
83
83
61
(1)
In August 2005, the Company and Hatco Corporation agreed to wind
up this investment.
(2)
The Company divested this investment in February 2007 (see
Note 5). The share of earnings (loss) for this investment
is included in Earnings (loss) from discontinued operations on
the consolidated statements of operations.
(3)
The Company accounts for its 10% ownership interest in
Sherbrooke Capital Health and Wellness, L.P. under the equity
method of accounting because the Company is able to exercise
significant influence.
Year Ended December 31,
2007
2006
2005
(In $ millions)
204
197
138
83
83
61
57
109
66
(1)
Amount does not include a $1 million and a $3 million
liquidating dividend from Clear Lake Methanol Partners for the
years ended December 31, 2007 and 2006, respectively.
F-24
As of December 31,
2007
2006
(In $ millions)
2,916
2,505
1,576
1,411
Carrying Value as of
Ownership Percentage
December 31,
Segment
2007
2006
2007
2006
(In percent)
(In $ millions)
Acetyl Intermediates
25
25
54
54
Consumer Specialties
30
30
15
15
Consumer Specialties
31
31
77
77
Consumer Specialties
30
30
15
15
Other Activities
8
8
6
6
22
26
189
193
F-25
10.
Property,
Plant and Equipment, Net
As of December 31,
2007
2006
(In $ millions)
69
64
45
51
353
353
2,404
2,089
329
285
3,200
2,842
(838
)
(687
)
2,362
2,155
F-26
11.
Goodwill
Advanced
Engineered
Consumer
Industrial
Acetyl
Materials
Specialties
Specialties
Intermediates
Total
(In $ millions)
285
267
59
338
949
(6
)
17
11
(26
)
(33
)
(1
)
(26
)
(86
)
(3
)
6
(2
)
1
256
240
52
327
875
(11
)
(14
)
(11
)
(36
)
18
18
(42
)
(42
)
(1
)
(1
)
15
6
(1
)
(22
)
(2
)
(6
)
(6
)
17
14
3
26
60
277
264
47
278
866
(1)
Amounts have been reallocated based on the revised segments as
discussed in Note 26.
(2)
The adjustments recorded during the year ended December 31,
2006 consist primarily of reversals of certain pre-acquisition
tax valuation allowances and resolution of uncertainties.
(3)
The adjustments recorded during the year ended December 31,
2007 consist primarily of goodwill recorded related to the
purchase of the remaining outstanding CAG shares during the
Squeeze-Out of $5 million offset by reversals of certain
pre-acquisition tax valuation allowances of $41 million.
(4)
See Note 20 for additional discussion of FIN 48.
(5)
In connection with the Companys annual goodwill impairment
test, the Company recorded an impairment of approximately
$6 million in the polyvinyl alcohol (PVOH)
reporting unit. The PVOH reporting unit is included in the
Industrial Specialties segment.
F-27
12.
Intangible
Assets
Customer
Covenants
Trademarks
Related
not to
and
Intangible
Developed
Compete
Tradenames
Assets
Technology
and Other
Total
(In $ millions)
73
474
12
11
570
2
14
1
17
(8
)
(8
)
(2
)
(2
)
6
43
1
50
79
523
13
12
627
2
10
12
(1
)
(17
)
(1
)
(19
)
5
46
51
85
562
12
12
671
(1
)
(80
)
(5
)
(3
)
(89
)
(65
)
(3
)
(3
)
(71
)
8
8
(12
)
(12
)
(1
)
(149
)
(8
)
(6
)
(164
)
(68
)
(1
)
(3
)
(72
)
1
5
6
(16
)
(16
)
(228
)
(9
)
(9
)
(246
)
85
334
3
3
425
F-28
13.
Other
Current Liabilities
As of December 31,
2007
2006
(In $ millions)
168
198
19
26
40
34
41
68
170
148
16
12
129
7
305
287
888
780
14.
Other
Liabilities
As of December 31,
2007
2006
(In $ millions)
96
88
78
86
71
72
93
26
31
47
37
34
89
90
495
443
Year Ended December 31,
2007
2006
2005
(In $ millions)
59
54
52
10
9
5
3
4
(6
)
(2
)
(9
)
(16
)
(12
)
3
9
(2
)
(7
)
4
1
1
47
59
54
(1)
The amount in 2007 relates to the sale of the Edmonton plant and
the amount in 2005 relates to the sale of the Rock Hill plant
(see Note 5).
(2)
Included in the liability for each of the years ended
December 31, 2007, 2006 and 2005 is approximately
$10 million related to a business acquired in 2005. The
Company has a corresponding receivable for this amount included
in Other receivables for each of these respective years.
F-29
15.
Debt
As of December 31,
2007
2006
(In $ millions)
44
127
228
182
272
309
1,622
2,855
799
171
339
81
14
14
181
191
110
30
168
69
3,328
3,316
44
127
3,284
3,189
(1)
These facilities were repaid in full in conjunction with the
debt refinancing discussed below.
F-30
F-31
Year Ended December 31,
2007
2006
2005
(In $ millions)
207
74
33
1
28
16
256
1
102
(In $ millions)
272
73
69
76
51
3,015
3,556
16.
Benefit
Obligations
F-32
F-33
Pension Benefits
Postretirement Benefits
As of December 31,
As of December 31,
2007
2006
2007
2006
(In $ millions)
3,343
3,407
343
377
38
40
2
2
187
183
19
20
1
1
17
18
4
1
(1
)
(123
)
(115
)
(18
)
(14
)
3
(1
)
(40
)
(9
)
(215
)
(205
)
(66
)
(59
)
6
(1
)
(1
)
(1
)
69
32
4
1
1
6
3,264
3,343
306
343
2,802
2,603
209
332
48
53
43
41
1
1
17
18
(28
)
(9
)
(215
)
(205
)
(66
)
(59
)
6
57
20
1
7
2,875
2,802
(389
)
(541
)
(306
)
(343
)
3
(1
)
(1
)
(1
)
(53
)
64
(71
)
(44
)
(439
)
(478
)
(378
)
(388
)
7
4
(21
)
(22
)
(34
)
(38
)
(375
)
(523
)
(272
)
(305
)
(389
)
(541
)
(306
)
(343
)
(53
)
64
(71
)
(44
)
3
(1
)
(1
)
(1
)
(50
)
63
(72
)
(45
)
(439
)
(478
)
(378
)
(388
)
(1)
Primarily relates to change in discount rates.
(2)
Amount shown net of tax in the consolidated statements of
shareholders equity. See Note 20 for the related tax
associated with the pension and postretirement benefit
obligations.
F-34
As of December 31,
2007
2006
(In $ millions)
638
3,264
618
3,124
308
2,723
Pension Benefits
Postretirement Benefits
Year Ended December 31,
Year Ended December 31,
2007
2006
2005
2007
2006
2005
(In $ millions)
38
40
40
2
2
3
187
183
181
19
20
23
(216
)
(207
)
(200
)
1
1
2
1
(2
)
(1
)
1
2
(1
)
(1
)
(1
)
(12
)
1
3
1
(3
)
23
26
18
21
25
(52
)
66
(73
)
(44
)
3
(1
)
(1
)
(1
)
(2
)
2
(1
)
(8
)
(10
)
180
(44
)
(58
)
53
180
(72
)
(45
)
(44
)
(61
)
76
206
(54
)
(24
)
(19
)
(1)
Amounts shown net of tax in the consolidated statements of
shareholders equity and comprehensive income (loss).
F-35
Pension Benefits
Postretirement Benefits
As of
As of
December 31,
December 31,
2007
2006
2007
2006
6.30
%
5.88
%
6.00
%
5.88
%
5.42
%
4.70
%
5.31
%
4.80
%
6.16
%
5.68
%
5.93
%
5.79
%
4.00
%
4.00
%
4.00
%
4.00
%
3.15
%
3.18
%
3.48
%
3.53
%
3.66
%
3.73
%
3.92
%
3.92
%
F-36
Pension Benefits
Postretirement Benefits
Year Ended December 31,
Year Ended December 31,
2007
2006
2005
2007
2006
2005
5.88
%
5.63
%
5.88
%
5.88
%
5.63
%
5.88
%
4.70
%
4.54
%
5.50
%
4.80
%
4.97
%
5.68
%
5.68
%
5.46
%
5.85
%
5.79
%
5.57
%
5.86
%
8.50
%
8.50
%
8.50
%
N/A
N/A
N/A
6.59
%
6.30
%
6.25
%
N/A
N/A
N/A
8.20
%
8.17
%
8.19
%
N/A
N/A
N/A
4.00
%
4.00
%
4.00
%
N/A
N/A
N/A
3.18
%
3.26
%
3.25
%
N/A
N/A
N/A
3.73
%
3.81
%
3.80
%
N/A
N/A
N/A
Weighted
Average
Percentage of
Target
Plan Assets as of
Allocation
December 31,
2008
2007
2006
69
%
68
%
69
%
30
%
30
%
31
%
1
%
2
%
0
%
100
%
100
%
100
%
Weighted
Average
Percentage of
Target
Plan Assets as of
Allocation
December 31,
2008
2007
2006
23
%
39
%
50
%
71
%
48
%
49
%
6
%
13
%
1
%
100
%
100
%
100
%
F-38
Postretirement
Benefit
Pension
Expected
Benefit
Federal
Payments
(1)
Payments
Subsidy
(In $ millions)
214
34
7
210
31
6
208
28
7
212
25
7
211
23
8
1,112
121
8
(1)
Payments are expected to be made primarily from plan assets.
As of December 31,
2007
2006
(In $ millions)
36
40
13
21
49
61
17.
Environmental
F-39
F-40
Ownership %
Liability %
39.0
%
10.0
%
28.2
%
22.0
%
100.0
%
100.0
%
31.2
%
40.0
%
7.9
%
0.0
%
100.0
%
0.0
%
F-41
18.
Shareholders
Equity
F-42
F-43
Accumulated
Unrealized
Unrealized
Other
Gain (Loss) on
Foreign
Pension and
Gain/(Loss)
Comprehensive
Marketable
Currency
Postretirement
on Derivative
Income
Securities
Translation
Benefits
Contracts
(Loss), Net
(In $ millions)
(7
)
7
(19
)
2
(17
)
3
5
(117
)
(109
)
(4
)
12
(136
)
2
(126
)
13
5
137
2
157
9
17
1
4
31
17
70
120
(41
)
166
26
87
121
(37
)
197
19.
Other
(Charges) Gains, Net
Year Ended December 31,
2007
2006
2005
(In $ millions)
(32
)
(12
)
(18
)
(11
)
1
(4
)
(12
)
(74
)
4
5
34
40
31
(9
)
(1)
(25
)
(5
)
(2
)
(4
)
(36
)
(58
)
(10
)
(61
)
(1)
Included in this amount is $6 million of goodwill
impairment (see Note 11).
F-44
(1)
Included in this amount is $33 million of employee
termination benefits, of which $14 million relates to the
Emulsions and PVOH restructuring discussed above. Also included
in this amount is $13 million of reserves recorded in
conjunction with the closure of the Little Heath, United Kingdom
production plant acquired in the APL acquisition.
F-45
20.
Income
Taxes
Year Ended
December 31,
2007
2006
2005
(In $ millions)
(111
)
116
(99
)
558
410
375
447
526
276
Year Ended
December 31,
2007
2006
2005
(In $ millions)
(9
)
38
(2
)
163
29
65
154
67
63
17
80
7
(61
)
56
(46
)
(44
)
136
(39
)
110
203
24
F-46
As of
December 31,
2007
2006
(In $ millions)
229
331
92
95
2
8
214
270
33
10
570
714
(311
)
(460
)
259
254
384
436
26
26
7
(34
)
57
43
474
471
(215
)
(217
)
(1)
Includes deferred tax asset valuation allowances primarily for
the Companys deferred tax assets in the US, Germany and
certain Canadian entities, as well as other foreign
jurisdictions. These valuation allowances relate to net
operating loss carryforward benefits and other net deferred tax
assets, all of which may not be realizable.
F-47
Year Ended
December 31,
2007
2006
2005
(In $ millions)
156
184
97
9
4
(8
)
8
5
12
19
15
10
27
28
12
(98
)
(59
)
(107
)
(21
)
10
26
8
110
203
24
(1)
Includes impact of earnings from China and Singapore subject to
tax holidays which expire between 2008 and 2013.
F-48
Year Ended
December 31, 2007
(In $ millions)
193
2
28
(21
)
(2
)
200
F-49
21.
Stock-Based
and Other Management Compensation Plans
F-50
F-51
Year Ended December 31,
2007
2006
4.6
%
5.0
%
6.8
7.2
0.42
%
0.81
%
27.5
%
31.2
%
Year Ended December 31, 2007
Weighted-
Weighted-
Average
Average
Grant
Remaining
Aggregate
Number of
Price in
Contractual
Intrinsic
Options
$
Term
Value
(In millions)
(In $ millions)
12.5
16.81
7.0
113
0.7
38.53
(4.3
)
16.11
84
(0.8
)
19.45
8.1
18.72
7.5
192
4.8
16.13
6.7
126
F-52
Year Ended December 31, 2005
Basic
Diluted
Earnings
Earnings
Net
per Common
per Common
Earnings
Share
Share
(In $ millions, except per share information)
267
1.73
1.67
1
0.01
0.01
(9
)
(0.06
)
(0.05
)
259
1.68
1.63
F-53
Year Ended
December 31,
2007
4.53 4.55
%
0.00 2.76
%
20.0 45.0
%
Weighted
Number of
Average
Units
Fair Value
1,210,391
21.81
(91,435
)
21.34
1,118,956
21.84
22.
Leases
Capital
Operating
(In $ millions)
19
64
19
49
19
36
19
36
18
26
159
92
(40
)
253
263
143
110
F-54
23.
Financial
Instruments
F-55
F-56
As of December 31,
2007
2006
Carrying
Fair
Carrying
Fair
Amount
Value
Amount
Value
(In $ millions)
189
189
193
193
261
261
265
265
74
74
72
72
3,284
3,167
3,189
3,359
(75
)
(75
)
(37
)
(37
)
(37
)
(37
)
3
3
(25
)
(25
)
(5
)
(5
)
(1)
Amount includes a current receivable of $29 million and
$2 million as of December 31, 2007 and 2006,
respectively.
24.
Commitments
and Contingencies
F-57
F-58
F-59
F-60
The Company agreed to indemnify Hoechst, and its legal
successors, for environmental liabilities associated with
contamination arising under 19 divestiture agreements entered
into by Hoechst prior to the demerger.
The Company will indemnify Hoechst, and its legal successors,
against those liabilities up to 250 million;
Hoechst, and its legal successors, will bear those liabilities
exceeding 250 million, however the Company will
reimburse Hoechst, and its legal successors, for one-third of
those liabilities for amounts that exceed 750 million
in the aggregate.
F-61
F-62
25.
Supplemental
Cash Flow Information
Year Ended December 31,
2007
2006
2005
(In $ millions)
181
101
65
414
239
309
17
13
3
80
5
17
18
4
10
11
19
(1)
Amount includes premiums paid on early redemption of debt and
related issuance costs, net of amounts capitalized, of
$217 million, $0 million and $74 million for the
years ended December 31, 2007, 2006 and 2005, respectively.
F-63
26.
Business
and Geographical Segments
F-64
Advanced
Engineered
Consumer
Industrial
Acetyl
Total
Other
Materials
Specialties
Specialties
Intermediates
Segments
Activities
Eliminations
Consolidated
(In $ millions)
1,030
1,111
1,346
2,955
6,442
2
6,444
660
660
(660
)
189
235
28
694
1,146
(699
)
447
69
51
59
106
285
6
291
59
43
63
130
295
11
306
4
4
23
(72
)
(41
)
64
35
(2)
58
445
339
97
410
1,291
1,291
1,751
1,157
995
2,530
6,433
1,625
8,058
915
876
1,281
2,684
5,756
22
5,778
667
667
(667
)
201
185
43
519
948
(422
)
526
65
39
59
101
264
5
269
27
75
30
105
237
7
244
(6
)
11
5
5
10
430
322
110
476
1,338
1,338
1,584
1,071
903
2,768
6,326
1,569
7,895
887
839
1,061
2,451
5,238
32
5,270
460
460
(460
)
116
127
(4
)
555
794
(518
)
276
60
41
47
110
258
9
267
54
38
21
83
196
7
203
(8
)
9
7
9
17
44
61
466
358
125
481
1,430
1,430
1,587
1,064
851
2,651
6,153
1,292
7,445
(1)
Includes non-cash accrued capital expenditures of
$18 million (see Note 25).
(2)
Represents insurance recoveries received from the Companys
captive insurance companies related to the Clear Lake, Texas
facility (see Note 30) that eliminates in
consolidation.
F-65
For the Year Ended December 31,
2007
2006
2005
(In $ millions)
1,754
1,803
1,768
4,690
3,975
3,502
6,444
5,778
5,270
2,348
1,974
1,662
762
771
696
266
279
187
349
303
306
182
14
20
As of December 31,
2007
2006
(In $ millions)
788
861
1,574
1,294
2,362
2,155
493
530
91
98
126
149
133
130
383
137
F-66
27.
Transactions
and Relationships with Affiliates and Related Parties
Year Ended December 31,
2007
2006
2005
(In $ millions)
126
159
182
126
290
232
1
1
1
7
5
3
(1)
Purchases and sales from/to affiliates are accounted for at
prices which, in the opinion of the Company, approximate those
charged to third-party customers for similar goods or services.
As of December 31,
2007
2006
(In $ millions)
15
43
15
41
7
37
84
22
24
228
182
250
206
F-67
F-68
28.
Earnings
(Loss) Per Share
Year Ended December 31,
2007
2006
2005
Basic
Diluted
Basic
Diluted
Basic
Diluted
(In $ millions, except for share and per share data)
336
336
319
319
214
214
90
90
87
87
63
63
426
426
406
406
277
277
(10
)
(10
)
(10
)
416
426
396
406
267
277
154,475,020
154,475,020
158,597,424
158,597,424
154,402,575
154,402,575
4,344,644
1,205,413
645,655
362,130
12,046,203
12,004,762
11,151,818
154,475,020
171,227,997
158,597,424
171,807,599
154,402,575
166,200,048
2.11
1.96
1.95
1.86
1.32
1.29
0.58
0.53
0.55
0.50
0.41
0.38
2.69
2.49
2.50
2.36
1.73
1.67
29.
Relocation
of Ticona Plant in Kelsterbach
F-69
30.
Clear
Lake, Texas Outage
31.
Subsequent
Events
F-70
Exhibit
Second Amended and Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3.1 to the Current Report
on Form 8-K filed on January 28, 2005)
Second Amended and Restated By-laws, effective as of February 8,
2008 (Incorporated by reference to Exhibit 3.2 to the Current
Report on Form 8-K filed on February 14, 2008)
Certificate of Designations of 4.25% Convertible Perpetual
Preferred Stock (Incorporated by reference to Exhibit 3.2 to the
Current Report on Form 8-K filed on January 28, 2005)
Form of certificate of Series A Common Stock (Incorporated by
reference to Exhibit 4.1 to the Registration Statement on Form
S-1 (File No. 333-120187), filed on January 13, 2005)
Form of certificate of 4.25% Convertible Perpetual
Preferred Stock (Incorporated by reference to Exhibit 4.2 to the
Registration Statement on Form S-1 (File No. 333-120187) filed
on January 13, 2005)
Amended and Restated Registration Rights Agreement, dated as of
January 26, 2005, by and among Blackstone Capital Partners
(Cayman) Ltd. 1, Blackstone Capital Partners (Cayman) Ltd. 2,
Blackstone Capital Partners (Cayman) Ltd. 3 and BA Capital
Investors Sidecar Fund, L.P. (Incorporated by reference to
Exhibit 10.2 to the Current Report on Form 8-K filed on January
28, 2005)
Credit Agreement, dated April 2, 2007, among Celanese Holdings
LLC, Celanese US Holdings LLC, the subsidiaries of Celanese US
Holdings LLC from time to time party thereto as borrowers, the
Lenders party thereto, Deutsche Bank AG, New York Branch, as
administrative agent and as collateral agent, Merrill Lynch
Capital Corporation as syndication agent, ABN AMRO Bank N.V.,
Bank of America, N.A., Citibank NA, and JP Morgan Chase Bank NA,
as co-documentation agents (incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K filed with the SEC on
April 5, 2007)
Guarantee and Collateral Agreement, dated April 2, 2007, by and
among Celanese Holdings LLC, Celanese US Holdings LLC, certain
subsidiaries of Celanese US Holdings LLC and Deutsche Bank AG,
New York Branch (incorporated by reference to Exhibit 10.2 to
the Current Report on Form 8-K filed with the SEC on April 5,
2007)
Celanese Corporation 2004 Stock Incentive Plan (Incorporated by
reference to Exhibit 10.7 to the Current Report on Form 8-K
filed on January 28, 2005)
Celanese Corporation Deferred Compensation Plan (Incorporated by
reference to Exhibit 10.21 to the Registration Statement on Form
S-1 (File No. 333-120187) filed on January 3, 2005)
Amendment to Celanese Corporation Deferred Compensation Plan
(incorporated by reference to Exhibit 10.2 to the Current Report
on Form 8-K filed with the SEC on April 3, 2007)
Deferred Compensation
Plan-Master
Plan Document adopted December 7, 2007
Sponsor Services Agreement, dated as of January 26, 2005, among
Celanese Corporation, Celanese Holdings LLC and Blackstone
Management Partners IV L.L.C. (Incorporated by reference to
Exhibit 10.3 to the Current Report on Form 8-K filed on January
28, 2005)
Employee Stockholders Agreement, dated as of January 21, 2005,
among Celanese Corporation, Blackstone Capital Partners (Cayman)
Ltd., Blackstone Capital Partners (Cayman) Ltd. 2, Blackstone
Capital Partners (Cayman) Ltd. 3 and employee stockholders
parties thereto from time to time (Incorporated by reference to
Exhibit 10.20 to the Annual Report of Form 10-K filed on March
31, 2005)
Form of Nonqualified Stock Option Agreement (for employees)
(Incorporated by reference to Exhibit 10.5 to the Current Report
on Form 8-K filed on January 28, 2005)
Form of Nonqualified Stock Option Agreement (for non-employee
directors) (Incorporated by reference to Exhibit 10.6 to the
Current Report on Form 8-K filed on January 28, 2005)
Form of Director Performance-Based Restricted Stock Unit
Agreement between Celanese Corporation and award recipient
(Incorporated by reference to Exhibit 10.1 to the Quarterly
Report on Form 10-Q filed on July 27, 2007)
Form of 2007 Deferral Agreement between Celanese Corporation and
award recipient, dated as of April 2, 2007 (incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K
filed with the SEC on April 3, 2007)
Exhibit
Form of Performance-Based Restricted Stock Unit Agreement
between Celanese Corporation and award recipient, dated as of
April 2, 2007 (incorporated by reference to Exhibit 10.3 to the
Current Report on Form 8-K filed with the SEC on April 3, 2007)
Bonus Plan for fiscal year ended 2005 for named executive
officers (Incorporated by reference to Exhibit 10.24 to the
Annual Report of Form 10-K filed on March 31, 2005)
Employment Agreement, dated as of February 23, 2005, between
David N. Weidman and Celanese Corporation (Incorporated by
reference to Exhibit 10.25 to the Annual Report of Form 10-K
filed on March 31, 2005)
Bonus Award Letter, dated as of February 23, 2005, between David
N. Weidman and Celanese Corporation (Incorporated by reference
to Exhibit 10.29 to the Annual Report of Form 10-K filed on
March 31, 2005)
Summary of pension benefits for David N. Weidman (Incorporated
by reference to Exhibit 10.34 to the Annual Report of Form 10-K
filed on March 31, 2005)
Employment Agreement dated as of February 17, 2005 between
Lyndon B. Cole and Celanese Corporation (Incorporated by
reference to Exhibit 10.26 to the Annual Report of Form 10-K
filed on March 31, 2005)
Separation Agreement, dated as of July 5, 2007, between Celanese
Corporation and Lyndon B. Cole (Incorporated by reference to
Exhibit 10.2 to the Quarterly Report on Form 10-Q filed on July
27, 2007).
Bonus Award Letter, dated as of February 23, 2005 between Lyndon
B. Cole and Celanese Corporation (Incorporated by reference to
Exhibit 10.31 to the Annual Report of Form 10-K filed on March
31, 2005)
English Translation of Service Agreement, dated as of November
1, 2004, between Lyndon B. Cole and Celanese AG (Incorporated by
reference to Exhibit 10.32 to the Annual Report of Form 10-K
filed on March 31, 2005)
Offer letter agreement, effective April 18, 2005 between Curtis
S. Shaw and Celanese Corporation (Incorporated by reference to
Exhibit 10.23 to the Quarterly Report on Form 10-Q filed on May
16, 2005)
Offer Letter Agreement, dated June 27, 2007, between Celanese
Corporation and Sandra Beach Lin (Incorporated by reference to
Exhibit 10.3 to the Quarterly Report on Form 10-Q filed on July
27, 2007).
Amended and Restated Employment Agreement, dated as of July 26,
2007 between Celanese Corporation and John J. Gallagher III
(Incorporated by reference to Exhibit 10.1 to the Quarterly
Report on Form 10-Q filed on October 24, 2007).
Nonqualified Stock Option Agreement, dated as of January 25,
2005, between Celanese Corporation and Blackstone Management
Partners IV L.L.C. (Incorporated by reference from Exhibit
10.23 to the Annual Report on Form 10-K filed on March 31, 2005)
Share Purchase and Transfer Agreement and Settlement Agreement,
dated August 19, 2005 between Celanese Europe Holding GmbH
& Co. KG, as purchaser, and Paulson & Co. Inc., and
Arnhold and S. Bleichroeder Advisers, LLC, each on behalf of its
own and with respect to shares owned by the investment funds and
separate accounts managed by it, as the sellers (Incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K
filed on August 19, 2005)
Translation of Letter of Intent, dated November 29, 2006, among
Celanese AG, Ticona GmbH and Fraport AG (Incorporated by
reference to Exhibit 99.2 to the Current Report on Form 8-K
filed November 29, 2006)
Purchase Agreement dated as of December 12, 2006 by and among
Celanese Ltd. and certain of its affiliates named therein and
Advent Oxo (Cayman) Limited, Oxo Titan US Corporation,
Drachenfelssee 520. V V GMBH and Drachenfelssee 521. V V GMBH
(Incorporated by reference to Exhibit 10.27 to the Annual
Report of
Form 10-K
filed on February 21, 2007)
First Amendment to Purchase Agreement dated February 28, 2007,
by and among Advent Oxea Cayman Ltd., Oxea Corporation,
Drachenfelssee 520. V V GmbH, Drachenfelssee 521. V V GmbH,
Celanese Ltd., Ticona Polymers Inc. and Celanese Chemicals
Europe GmbH (Incorporated by reference to Exhibit 10.6 to the
Quarterly Report on Form 10-Q filed on May 9, 2007)
Second Amendment to Purchase Agreement effective as of July 1,
2007 by and among Advent Oxea Cayman Ltd., Oxea Corporation,
Oxea Holdings GmbH, Oxea Deutschland GmbH, Oxea Bishop, LLC,
Oxea Japan KK, Oxea UK Ltd., Celanese Ltd., and Celanese
Chemicals Europe GmbH (Incorporated by reference to Exhibit 10.2
to the Quarterly Report on Form 10-Q filed on October 24, 2007).
Jim
Alder-Compensation
Letter Agreement dated March 27, 2007
Exhibit
List of subsidiaries
Report on Financial Statement Schedule and Consent of
Independent Registered Public Accounting Firm, KPMG LLP
Certification of Chief Executive Officer pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
Certification of Chief Financial Officer pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
Certification of Chief Executive Officer pursuant to Section 906
of the Sarbanes-Oxley Act of 2002
Certification of Chief Financial Officer pursuant to Section 906
of the Sarbanes-Oxley Act of 2002
Financial Statement schedule regarding Valuation and Qualifying
Accounts
*
Filed herewith
Portions of this exhibit have been omitted pursuant to a request
for confidential treatment filed with the Securities and
Exchange Commission under
Rule 24b-2
of the Securities Exchange Act of 1934, as amended. The omitted
portions of this exhibit have been separately filed with the
Securities and Exchange Commission.
Page | ||||
ARTICLE 1 Definitions
|
1 | |||
|
||||
ARTICLE 2 Selection, Enrollment, Eligibility
|
7 | |||
|
||||
2.1
Selection by Committee
|
7 | |||
2.2
Enrollment and Eligibility Requirements; Commencement of Participation
|
7 | |||
|
||||
ARTICLE 3 Deferral Commitments/Restricted Stock Unit Amounts/Company Contribution
|
8 | |||
Amounts/Company Restoration Matching Amounts/Vesting/Crediting/Taxes
|
||||
|
||||
3.1
Maximum Deferral
|
8 | |||
3.2
Timing of Deferral Elections; Effect of Election Form
|
9 | |||
3.3
Withholding and Crediting of Annual Deferral Amounts
|
10 | |||
3.4
Restricted Stock Unit Amounts
|
10 | |||
3.5
Company Contribution Amount
|
11 | |||
3.6
Company Restoration Matching Amount
|
11 | |||
3.7
Vesting
|
12 | |||
3.8
Crediting/Debiting of Account Balances
|
13 | |||
3.9
FICA and Other Taxes
|
15 | |||
|
||||
ARTICLE 4 Scheduled Distributions
|
16 | |||
|
||||
4.1
Scheduled Distributions
|
16 | |||
4.2
Postponing Scheduled Distributions
|
16 | |||
4.3
Other Benefits Take Precedence Over Scheduled Distributions
|
17 | |||
4.4
Unforeseeable Emergencies
|
17 | |||
|
||||
ARTICLE 5 Change In Control Benefit
|
17 | |||
|
||||
5.1
Change in Control Benefit
|
17 | |||
5.2
Payment of Change in Control Benefit
|
18 | |||
|
||||
ARTICLE 6 Retirement Benefit
|
18 | |||
|
||||
6.1
Retirement Benefit
|
18 | |||
6.2
Payment of Retirement Benefit
|
18 | |||
|
||||
ARTICLE 7 Termination Benefit
|
19 | |||
|
||||
7.1
Termination Benefit
|
19 | |||
7.2
Payment of Termination Benefit
|
19 | |||
|
||||
ARTICLE 8 Disability Benefit
|
19 |
-i-
8.1
Disability Benefit
|
19 | |||
8.2
Payment of Disability Benefit
|
20 | |||
|
||||
ARTICLE 9 Death Benefit
|
20 | |||
|
||||
9.1
Death Benefit
|
20 | |||
9.2
Payment of Death Benefit
|
20 | |||
|
||||
ARTICLE 10 Beneficiary Designation
|
20 | |||
|
||||
10.1
Beneficiary
|
20 | |||
10.2
Beneficiary Designation; Change; Spousal Consent
|
20 | |||
10.3
Acknowledgement
|
20 | |||
10.4
No Beneficiary Designation
|
20 | |||
10.5
Doubt as to Beneficiary
|
21 | |||
10.6
Discharge of Obligations
|
21 | |||
|
||||
ARTICLE 11 Leave of Absence
|
21 | |||
|
||||
11.1
Paid Leave of Absence
|
21 | |||
11.2
Unpaid Leave of Absence
|
21 | |||
|
||||
ARTICLE 12 Termination of Plan, Amendment or Modification
|
21 | |||
|
||||
12.1
Termination of Plan
|
21 | |||
12.2
Amendment
|
22 | |||
12.3
Plan Agreement
|
22 | |||
12.4
Effect of Payment
|
22 | |||
|
||||
ARTICLE 13 Administration
|
22 | |||
|
||||
13.1
Committee Duties
|
22 | |||
13.2
Administration Upon Change In Control
|
22 | |||
13.3
Agents
|
23 | |||
13.4
Binding Effect of Decisions
|
23 | |||
13.5
Indemnity of Committee
|
23 | |||
13.6
Employer Information
|
23 | |||
|
||||
ARTICLE 14 Other Benefits and Agreements
|
23 | |||
|
||||
14.1
Coordination with Other Benefits
|
23 | |||
|
||||
ARTICLE 15 Claims Procedures
|
23 | |||
|
||||
15.1
Presentation of Claim
|
23 | |||
15.2
Notification of Decision
|
24 | |||
15.3
Review of a Denied Claim
|
24 |
-ii-
15.4
Decision on Review
|
24 | |||
15.5
Legal Action
|
25 | |||
|
||||
ARTICLE 16 Trust
|
25 | |||
|
||||
16.1
Establishment of the Trust
|
25 | |||
16.2
Interrelationship of the Plan and the Trust
|
25 | |||
16.3
Distributions From the Trust
|
25 | |||
|
||||
ARTICLE 17 Miscellaneous
|
25 | |||
|
||||
17.1
Status of Plan
|
25 | |||
17.2
Unsecured General Creditor
|
26 | |||
17.3
Employers Liability
|
26 | |||
17.4
Nonassignability
|
26 | |||
17.5
Not a Contract of Employment
|
26 | |||
17.6
Furnishing Information
|
26 | |||
17.7
Terms
|
26 | |||
17.8
Captions
|
26 | |||
17.9
Governing Law
|
27 | |||
17.10
Notice
|
27 | |||
17.11
Successors
|
27 | |||
17.12
Spouses Interest
|
27 | |||
17.13
Validity
|
27 | |||
17.14
Incompetent
|
27 | |||
17.15
Domestic Relations Orders
|
27 | |||
17.16
Distribution in the Event of Income Inclusion Under Code Section 409A
|
28 | |||
17.17
Deduction Limitation on Benefit Payments
|
28 |
-iii-
1.1 | 2004 Equity Plan shall mean the Celanese Corporation 2004 Stock Incentive Plan or any successor plan. | |
1.2 | Account Balance shall mean, with respect to a Participant, an entry on the records of the Company equal to the sum of the Participants Annual Accounts. The Account Balance shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan. | |
If a Participant is both an Employee and a Director and participates in the Plan in each capacity, then separate Account Balances (and separate Annual Accounts, if applicable) shall be established for such Participant as a device for the measurement and determination of the (a) amounts deferred under the Plan that are attributable to the Participants status as an Employee, and (b) amounts deferred under the Plan that are attributable to the Participants status as a Director. | ||
1.3 | Annual Account shall mean, with respect to a Participant, an entry on the records of the Company equal to (a) the sum of the Participants Annual Deferral Amount, Company Contribution Amount, Company Restoration Matching Amount and Restricted Stock Unit Amount for any one Plan Year, plus (b) amounts credited or debited to such amounts pursuant to this Plan, less (c) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to the Annual Account for such Plan Year. The Annual Account shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan. | |
1.4 | Annual Deferral Amount shall mean that portion of a Participants Base Salary, Bonus, and Director Fees and that a Participant defers in accordance with Article 3 for any one Plan Year, without regard to whether such amounts are withheld and credited during such Plan Year. |
-1-
1.5 | Annual Installment Method shall mean the method used to determine the amount of each payment due to a Participant who has elected to receive a benefit over a period of years in accordance with the applicable provisions of the Plan. The amount of each annual payment due to the Participant shall be calculated by multiplying the balance of the Participants benefit by a fraction, the numerator of which is one and the denominator of which is the remaining number of annual payments due to the Participant. The amount of the first annual payment shall be calculated as of the close of business on or around the Participants Benefit Distribution Date, and the amount of each subsequent annual payment shall be calculated on or around each anniversary of such Benefit Distribution Date. For purposes of this Plan, the right to receive a benefit payment in annual installments shall be treated as the entitlement to a single payment. | |
1.6 | Base Salary shall mean the annual cash compensation relating to services performed during any calendar year, excluding distributions from nonqualified deferred compensation plans, bonuses, commissions, overtime, fringe benefits, stock options, relocation expenses, incentive payments, non-monetary awards, director fees and other fees, and automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are included in the Employees gross income). Base Salary shall be calculated before reduction for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or nonqualified plans of any Employer and shall be calculated to include amounts not otherwise included in the Participants gross income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by any Employer; provided, however, that all such amounts will be included in compensation only to the extent that had there been no such plan, the amount would have been payable in cash to the Employee. | |
1.7 | Beneficiary shall mean one or more persons, trusts, estates or other entities, designated in accordance with Article 10, that are entitled to receive benefits under this Plan upon the death of a Participant. | |
1.8 | Beneficiary Designation Form shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to designate one or more Beneficiaries. | |
1.9 | Benefit Distribution Date shall mean the date upon which all or an objectively determinable portion of a Participants vested benefits will become eligible for distribution. Except as otherwise provided in the Plan, a Participants Benefit Distribution Date shall be determined based on the earliest to occur of an event or scheduled date set forth in Articles 4 through 9, as applicable. | |
1.10 | Board shall mean the board of directors of the Company. | |
1.11 | Bonus shall mean any compensation, in addition to Base Salary, earned by a Participant under any Employers annual bonus and cash incentive plans. | |
1.12 | Change in Control shall mean the occurrence of a change in the ownership, a change in the effective control or a change in the ownership of a substantial portion of the assets of a corporation, as determined in accordance with this Section. | |
In order for an event described below to constitute a Change in Control with respect to a Participant, except as otherwise provided in part (b)(ii) of this Section, the applicable event must relate to the Company or the Employer of the Participant, as identified by the Committee in |
-2-
accordance with Treas. Reg. §1.409A-3(i)(5)(ii)(A)(2), or such other corporation identified by the Committee in accordance with Treas. Reg. §1.409A-3(i)(5)(ii)(A)(3). | ||
In determining whether an event shall be considered a change in the ownership, a change in the effective control or a change in the ownership of a substantial portion of the assets of a corporation, the following provisions shall apply: |
(a) | A change in the ownership of the applicable corporation shall occur on the date on which any one person, or more than one person acting as a group, acquires ownership of stock of such corporation that, together with stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of such corporation, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(v). If a person or group is considered either to own more than 50% of the total fair market value or total voting power of the stock of such corporation, or to have effective control of such corporation within the meaning of part (b) of this Section, and such person or group acquires additional stock of such corporation, the acquisition of additional stock by such person or group shall not be considered to cause a change in the ownership of such corporation. | ||
(b) | A change in the effective control of the applicable corporation shall occur on either of the following dates: |
(i) | The date on which any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of such corporation possessing 30% or more of the total voting power of the stock of such corporation, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vi). If a person or group is considered to possess 30% or more of the total voting power of the stock of a corporation, and such person or group acquires additional stock of such corporation, the acquisition of additional stock by such person or group shall not be considered to cause a change in the effective control of such corporation; or | ||
(ii) | The date on which a majority of the members of the applicable corporations board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of such corporations board of directors before the date of the appointment or election, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vi). In determining whether the event described in the preceding sentence has occurred, the applicable corporation to which the event must relate shall only include a corporation identified in accordance with Treas. Reg. §1.409A-3(i)(5)(ii) for which no other corporation is a majority shareholder. |
(c) | A change in the ownership of a substantial portion of the assets of the applicable corporation shall occur on the date on which any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the corporation immediately before such acquisition or |
-3-
acquisitions, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vii). A transfer of assets shall not be treated as a change in the ownership of a substantial portion of the assets when such transfer is made to an entity that is controlled by the shareholders of the transferor corporation, as determined in accordance with Treas. Reg. §1.409A-3(i)(5)(vii)(B). |
1.13 | Code shall mean the Internal Revenue Code of 1986, as it may be amended from time to time. | |
1.14 | Committee shall mean the committee described in Article 13. | |
1.15 | Company shall mean Celanese Corporation, a Delaware corporation, and any successor to all or substantially all of the Companys assets or business. | |
1.16 | Company Contribution Amount shall mean, for any one Plan Year, the amount determined in accordance with Section 3.5. | |
1.17 | Company Restoration Matching Amount shall mean, for any one Plan Year, the amount determined in accordance with Section 3.6. | |
1.18 | Director shall mean any member of the board of directors of any Employer. | |
1.19 | Director Fees shall mean the annual fees payable in cash that are earned by a Director from any Employer, including retainer fees and meetings fees, as compensation for serving on the board of directors. | |
1.20 | Disability or Disabled shall mean that a Participant is either (a) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (b) by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Participants Employer. For purposes of this Plan, a Participant shall be deemed Disabled if determined to be totally disabled by the Social Security Administration. A Participant shall also be deemed Disabled if determined to be disabled in accordance with the applicable disability insurance program of such Participants Employer, provided that the definition of disability applied under such disability insurance program complies with the requirements of this Section. | |
1.21 | Election Form shall mean the form, which may be in electronic format, established from time to time by the Committee that a Participant completes, signs and returns to the Committee to make an election under the Plan. | |
1.22 | Employee shall mean a person who is an employee of an Employer. | |
1.23 | Employer(s) shall be defined as follows: |
(a) | Except as otherwise provided in part (b) of this Section, the term Employer shall mean the Company and/or any of its subsidiaries (now in existence or hereafter formed or acquired) that have been selected by the Board to participate in the Plan and have adopted the Plan as a sponsor. | ||
(b) | For the purpose of determining whether a Participant has experienced a Separation from Service, the term Employer shall mean: |
-4-
(i) | The entity for which the Participant performs services and with respect to which the legally binding right to compensation deferred or contributed under this Plan arises; and | ||
(ii) | All other entities with which the entity described above would be aggregated and treated as a single employer under Code Section 414(b) (controlled group of corporations) and Code Section 414(c) (a group of trades or businesses, whether or not incorporated, under common control), as applicable. In order to identify the group of entities described in the preceding sentence, the Committee shall use an ownership threshold of at least 50% as a substitute for the 80% minimum ownership threshold that appears in, and otherwise must be used when applying, the applicable provisions of (A) Code Section 1563 for determining a controlled group of corporations under Code Section 414(b), and (B) Treas. Reg. §1.414(c)-2 for determining the trades or businesses that are under common control under Code Section 414(c). |
1.24 | ERISA shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time. | |
1.25 | 401(k) Plan shall mean, with respect to an Employer, a plan qualified under Code Section 401(a) that contains a cash or deferral arrangement described in Code Section 401(k), adopted by the Employer, as it may be amended from time to time, or any successor thereto. | |
1.26 | Participant shall mean any Employee or Director (a) who is selected to participate in the Plan, (b) whose executed Plan Agreement, Election Form and Beneficiary Designation Form are accepted by the Committee, and (c) whose Plan Agreement has not terminated. | |
1.27 | Performance-Based Compensation shall mean compensation the entitlement to or amount of which is contingent on the satisfaction of pre-established organizational or individual performance criteria relating to a performance period of at least 12 consecutive months, as determined by the Committee in accordance with Treas. Reg. §1.409A-1(e). | |
1.28 | Plan shall mean the Celanese Corporation Deferred Compensation Plan, which shall be evidenced by this instrument, as it may be amended from time to time, and by any other documents that together with this instrument define a Participants rights to amounts credited to his or her Account Balance. | |
1.29 | Plan Agreement shall mean a written agreement in the form prescribed by or acceptable to the Committee that evidences a Participants agreement to the terms of the Plan and which may establish additional terms or conditions of Plan participation for a Participant. Unless otherwise determined by the Committee, the most recent Plan Agreement accepted with respect to a Participant shall supersede any prior Plan Agreements for such Participant. Plan Agreements may vary among Participants and may provide additional benefits not set forth in the Plan or limit the benefits otherwise provided under the Plan. | |
1.30 | Plan Year shall mean a period beginning on January 1 of each calendar year and continuing through December 31 of such calendar year. | |
1.31 | Restricted Stock Unit Amount shall mean, with respect to a Participant for any one Plan Year, the amount of Restricted Stock Units deferred in accordance with this Plan, calculated using the |
-5-
closing price of Stock at the end of the business day closest to the date such Restricted Stock Units would otherwise vest (and/or all restrictions on such Restricted Stock Units would have lapsed), but for the election to defer. In the event of a Participants Separation from Service, Disability, or death prior to the end of a Plan Year, such years Restricted Stock Unit Amount shall be the actual amount withheld prior to such event provided that if a Participants deferral election applies to any Restricted Stock Units that vest on or after such event, such Restricted Stock Unit Amount shall be withheld and credited to the Participants Account Balance if necessary to comply with Code Section 409A. The portion of a Participants Account Balance attributable to Restricted Stock Unit Amounts, and the number of additional units credited to a Participants Account Balance as a result of the deemed reinvestment of dividends in accordance with this Plan, shall only be distributable in actual shares of Stock. | ||
1.32 | Restricted Stock Units shall mean rights granted to a Participant to receive shares of Stock, which (a) are awarded to the Participant under, and are subject to the terms and conditions of, a Celanese Corporation stock incentive plan or director compensation program, and (b) have been designated as eligible for deferral under this Plan by the Committee. | |
1.33 | Retirement, Retire(s) or Retired shall mean with respect to a Participant who is an Employee, a Separation from Service on or after the attainment of age 55 with 5 Years of Service, and shall mean with respect to a Participant who is a Director, a Separation from Service. If a Participant is both an Employee and a Director and participates in the Plan in each capacity, (a) the determination of whether the Participant qualifies for Retirement as an Employee shall be made when the Participant experiences a Separation from Service as an Employee and such determination shall only apply to the applicable Account Balance established in accordance with Section 1.2 for amounts deferred under the Plan as an Employee, and (b) the determination of whether the Participant qualifies for Retirement as a Director shall be made at the time the Participant experiences a Separation from Service as a Director and such determination shall only apply to the applicable Account Balance established in accordance with Section 1.2 for amounts deferred under the Plan as a Director. | |
1.34 | Separation from Service shall mean a termination of the services provided by a Participant to his or her Employer, whether voluntarily or involuntarily, other than by reason of death or Disability, as determined by the Committee in accordance with Treas. Reg. §1.409A-1(h). For a Participant who provides services to an Employer as an Employee, a Separation from Service shall occur when such Participant has experienced a termination of employment with such Employer. A Participant shall be considered to have experienced a termination of employment when the facts and circumstances indicate that the Participant and his or her Employer reasonably anticipate that either (i) no further services will be performed for the Employer after a certain date, or (ii) that the level of bona fide services the Participant will perform for the Employer after such date (whether as an Employee or as an independent contractor) will permanently decrease to no more than 20% of the average level of bona fide services performed by such Participant (whether as an Employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months). If a Participant is on military leave, sick leave, or other bona fide leave of absence, the employment relationship between the Participant and the Employer shall be treated as continuing intact, provided that the period of such leave does not exceed 6 months, or if longer, so long as the Participant retains a right to |
-6-
reemployment with the Employer under an applicable statute or by contract. If the period of a military leave, sick leave, or other bona fide leave of absence exceeds 6 months and the Participant does not retain a right to reemployment under an applicable statute or by contract, the employment relationship shall be considered to be terminated for purposes of this Plan as of the first day immediately following the end of such 6-month period. In applying the provisions of this paragraph, a leave of absence shall be considered a bona fide leave of absence only if there is a reasonable expectation that the Participant will return to perform services for the Employer. | ||
Notwithstanding the foregoing provisions, if a Participant provides services for an Employer as both an Employee and as a Director, to the extent permitted by Treas. Reg. §1.409A-1(h)(5) the services provided by such Participant as a Director shall not be taken into account in determining whether the Participant has experienced a Separation from Service as an Employee, and the services provided by such Participant as an Employee shall not be taken into account in determining whether the Participant has experienced a Separation from Service as a Director. | ||
1.35 | Stock shall mean Celanese Corporation Series A common stock, $0.0001 par value, or any other equity securities of the Company designated by the Committee. | |
1.36 | Trust shall mean one or more trusts established by the Company in accordance with Article 16. | |
1.37 | Unforeseeable Emergency shall mean a severe financial hardship of the Participant resulting from (a) an illness or accident of the Participant, the Participants spouse, the Participants Beneficiary or the Participants dependent (as defined in Code Section 152 without regard to paragraphs (b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the Participants property due to casualty, or (c) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, all as determined by the Committee based on the relevant facts and circumstances. | |
1.38 | Years of Service shall mean the total number of full years in which a Participant has been employed by one or more Employers. For purposes of this definition, a year of employment shall be a 365 day period (or 366 day period in the case of a leap year) that, for the first year of employment, commences on the Employees date of hiring and that, for any subsequent year, commences on an anniversary of that hiring date. A partial year of employment shall not be treated as a Year of Service. |
2.1 | Selection by Committee . Participation in the Plan shall be limited to Directors and, as determined by the Committee in its sole discretion, a select group of management or highly compensated Employees. From that group, the Committee shall select, in its sole discretion, those individuals who may actually participate in this Plan. | |
2.2 | Enrollment and Eligibility Requirements; Commencement of Participation . |
(a) | As a condition to participation, each Director or selected Employee shall complete, execute and return to the Committee a Plan Agreement, an Election Form and a Beneficiary Designation Form by the deadline(s) established by the Committee in accordance with the applicable provisions of this Plan. In addition, the Committee shall |
-7-
establish from time to time such other enrollment requirements as it determines, in its sole discretion, are necessary. | |||
(b) | Each Director or selected Employee who is eligible to participate in the Plan shall commence participation in the Plan on the date that the Committee determines that the Director or Employee has met all enrollment requirements set forth in this Plan and required by the Committee, including returning all required documents to the Committee within the specified time period. | ||
(c) | If a Director or an Employee fails to meet all requirements established by the Committee within the period required, that Director or Employee shall not be eligible to participate in the Plan during such Plan Year. |
(a) | Annual Deferral Amount . For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Base Salary, Bonus and/or Director Fees up to the following maximum percentages for each deferral elected: |
Deferral | Maximum Percentage | |||
Base Salary
|
75 | % | ||
Bonus
|
100 | % | ||
Director Fees
|
100 | % |
(b) | Restricted Stock Unit Amount . For each Plan Year, a Participant may elect to defer, as his or her Restricted Stock Unit Amount, up to the following maximum percentage of Restricted Stock Units: |
Deferral | Maximum Percentage | |||
Restricted Stock Units
|
100 | % |
(c) | Short Plan Year . Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, then to the extent required by Section 3.2 and Code Section 409A and related Treasury Regulations, the maximum amount of the Participants Base Salary, Bonus or Director Fees that may be deferred by the Participant for the Plan Year shall be determined by applying the percentages set forth in Section 3.1(a) to the portion of such compensation attributable to services performed after the date that the Participants deferral election is made. |
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3.2 | Timing of Deferral Elections; Effect of Election Form . |
(a) | General Timing Rule for Deferral Elections . Except as otherwise provided in this Section 3.2, in order for a Participant to make a valid election to defer Base Salary, Bonus and/or Director Fees, the Participant must submit an Election Form on or before the deadline established by the Committee, which in no event shall be later than the December 31 st preceding the Plan Year in which such compensation will be earned; provided that for Annual Deferral Amounts relating to certain compensation earned in the years ended December 31, 2007 and December 31, 2008, the Committee may establish other deadlines in accordance with the requirements of Code Section 409A and related Treasury Regulations. | ||
Any deferral election made in accordance with this Section 3.2(a) shall be irrevocable; provided, however, that if the Committee permits or requires Participants to make a deferral election by the deadline described above for an amount that qualifies as Performance-Based Compensation, the Committee may permit a Participant to subsequently change his or her deferral election for such compensation by submitting a new Election Form in accordance with Section 3.2(d) below. | |||
(b) | Timing of Deferral Elections for Restricted Stock Units . For an election to defer Restricted Stock Units to be valid, an Election Form must be completed and signed by the Participant with respect to such Restricted Stock Units by no later than (i) the end of the calendar year preceding the Plan Year during which such Restricted Stock Units may be initially granted to the Participant under the terms of the applicable Celanese Corporation stock incentive plan or director compensation program, or (ii) such other deadline established by the Committee in accordance with the requirements of Code Section 409A and related Treasury Regulations, including, without limitation, such other deadline(s) as may be applicable under this Section 3.2. All such elections to defer Restricted Stock Units shall be deemed to be modifications of the vesting terms of the Restricted Stock Units being deferred. | ||
(c) | Timing of Deferral Elections for Newly Eligible Plan Participants . A Director or selected Employee who first becomes eligible to participate in the Plan on or after the beginning of a Plan Year, as determined in accordance with Treas. Reg. §1.409A-2(a)(7)(ii) and the plan aggregation rules provided in Treas. Reg. §1.409A-1(c)(2), may be permitted to make an election to defer the portion of Base Salary, Bonus, Director Fees and/or Restricted Stock Units attributable to services to be performed after such election, provided that the Participant submits an Election Form on or before the deadline established by the Committee, which in no event shall be later than 30 days after the Participant first becomes eligible to participate in the Plan. | ||
If a deferral election made in accordance with this Section 3.2(c) relates to compensation earned based upon a specified performance period, the amount eligible for deferral shall be equal to (i) the total amount of compensation for the performance period, multiplied by (ii) a fraction, the numerator of which is the number of days remaining in the service period after the Participants deferral election is made, and the denominator of which is the total number of days in the performance period. |
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Any deferral election made in accordance with this Section 3.2(c) shall become irrevocable no later than the 30 th day after the date the Director or selected Employee becomes eligible to participate in the Plan. | |||
(d) | Timing of Deferral Elections for Performance-Based Compensation . Subject to the limitations described below, the Committee may determine that an irrevocable deferral election for an amount that qualifies as Performance-Based Compensation may be made by submitting an Election Form on or before the deadline established by the Committee, which in no event shall be later than 6 months before the end of the performance period. | ||
In order for a Participant to be eligible to make a deferral election for Performance-Based Compensation in accordance with the deadline established pursuant to this Section 3.2(d), the Participant must have performed services continuously from the later of (i) the beginning of the performance period for such compensation, or (ii) the date upon which the performance criteria for such compensation are established, through the date upon which the Participant makes the deferral election for such compensation. In no event shall a deferral election submitted under this Section 3.2(d) be permitted to apply to any amount of Performance-Based Compensation that has become readily ascertainable. | |||
(e) | Timing Rule for Deferral of Compensation Subject to Risk of Forfeiture . With respect to compensation (i) to which a Participant has a legally binding right to payment in a subsequent year, and (ii) that is subject to a forfeiture condition requiring the Participants continued services for a period of at least 12 months from the date the Participant obtains the legally binding right, the Committee may determine that an irrevocable deferral election for such compensation may be made by timely delivering an Election Form to the Committee in accordance with its rules and procedures, no later than the 30 th day after the Participant obtains the legally binding right to the compensation, provided that the election is made at least 12 months in advance of the earliest date at which the forfeiture condition could lapse, as determined in accordance with Treas. Reg. §1.409A-2(a)(5). | ||
Any deferral election(s) made in accordance with this Section 3.2(e) shall become irrevocable no later than the 30 th day after the Participant obtains the legally binding right to the compensation subject to such deferral election(s). |
3.3 | Withholding and Crediting of Annual Deferral Amounts . For each Plan Year, the Base Salary portion of the Annual Deferral Amount shall be withheld from each regularly scheduled Base Salary payroll in equal amounts, as adjusted from time to time for increases and decreases in Base Salary. The Bonus and/or Director Fees portion of the Annual Deferral Amount shall be withheld at the time the Bonus or Director Fees are or otherwise would be paid to the Participant, whether or not this occurs during the Plan Year itself. Annual Deferral Amounts shall be credited to the Participants Annual Account for such Plan Year at the time such amounts would otherwise have been paid to the Participant. Annual Deferral Amounts shall be withheld by the Participants Employer, which shall contribute such withheld amounts (less any required withholding for employment taxes made pursuant to Section 3.9) to the Company. | |
3.4 | Restricted Stock Unit Amounts . Subject to any terms and conditions imposed by the Committee, a Participant may elect to defer Restricted Stock Units under the Plan, which amount |
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shall be for that Participant the Restricted Stock Unit Amount for that Plan Year. Any Restricted Stock Units deferred shall, at the time the Restricted Stock Units would otherwise vest (and/or all restrictions on such Restricted Stock Units would have lapsed) under the terms of the applicable Celanese Corporation stock incentive plan or director compensation program, but for the election to defer, be reflected on the books of the Company as an unfunded, unsecured promise to deliver to the Participant a specific number of actual shares of Stock in the future. | ||
3.5 | Company Contribution Amount . |
(a) | For each Plan Year, the Company may be required to credit amounts to a Participants Annual Account in accordance with employment or other agreements entered into between the Participant and the Employer, which amounts shall be part of the Participants Company Contribution Amount for that Plan Year. Such amounts shall be credited to the Participants Annual Account for the applicable Plan Year on the date or dates prescribed by such agreements. | ||
(b) | For each Plan Year, the Company, in its sole discretion, may, but is not required to, credit any amount it desires to any Participants Annual Account under this Plan, which amount shall be part of the Participants Company Contribution Amount for that Plan Year. The amount so credited to a Participant may be smaller or larger than the amount credited to any other Participant, and the amount credited to any Participant for a Plan Year may be zero, even though one or more other Participants receive a Company Contribution Amount for that Plan Year. The Company Contribution Amount described in this Section 3.5(b), if any, shall be credited to the Participants Annual Account for the applicable Plan Year on a date or dates to be determined by the Committee. | ||
(c) | If not otherwise specified in the Participants employment or other agreement entered into between the Participant and the Employer, the amount (or the method or formula for determining the amount) of a Participants Company Contribution Amount shall be set forth in writing in one or more documents, which shall be deemed to be incorporated into this Plan in accordance with Section 1.28, no later than the date on which such Company Contribution Amount is credited to the applicable Annual Account of the Participant. |
3.6 | Company Restoration Matching Amount . For each Plan Year, the Committee, in its sole discretion, may, but is not required to, credit to a Participants Annual Account under this Plan an amount determined by the Committee to make up for certain limits applicable to the 401(k) Plan or other qualified plan for such Plan Year, as identified by the Committee, or for such other purposes as determined by the Committee in its sole discretion, which amount shall be the Participants Company Restoration Matching Amount for that Plan Year. The amount so credited to a Participant under this Plan for any Plan Year (a) may be smaller or larger than the amount credited to any other Participant, (b) may differ from the amount credited to such Participant in the preceding Plan Year, and (c) may be zero, even though one or more other Participants receive a Company Restoration Matching Amount for that Plan Year. The Participants Company Restoration Matching Amount, if any, shall be credited to the Participants Annual Account for the applicable Plan Year on a date or dates to be determined by the Committee. The amount (or the method or formula for determining the amount) of a Participants Company Restoration Matching Amount shall be set forth in writing in one or more documents, which shall be deemed to be incorporated into this Plan in accordance with Section |
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1.28, no later than the date on which such Company Restoration Matching Amount is credited to the applicable Annual Account of the Participant. |
(a) | A Participant shall at all times be 100% vested in the portion of his or her Account Balance attributable to Annual Deferral Amounts and Restricted Stock Unit Amounts, plus amounts credited or debited on such amounts pursuant to Section 3.8. | ||
(b) | A Participant shall be vested in the portion of his or her Account Balance attributable to any Company Contribution Amounts, plus amounts credited or debited on such amounts pursuant to Section 3.8, in accordance with the vesting schedule(s) set forth in his or her Plan Agreement, employment agreement or any other agreement entered into between the Participant and his or her Employer. If not addressed in any such agreement, a Participant shall vest in each Company Contribution Amount on the anniversary of the date on which such Company Contribution Amount was credited to the Participants Account Balance, in accordance with the following schedule; provided, however , that the Participant must be in the service of the Company on such anniversary to receive vesting credit: |
Time Elapsed Following Crediting of Company Contribution Amount | Vested Percentage | |||
Less than 1 year
|
0 | % | ||
1 year or more, but less than 2 years
|
33 | % | ||
2 years or more, but less than 3 years
|
67 | % | ||
3 years or more
|
100 | % |
A new vesting schedule shall apply to each Company Contribution Amount credited to the Participants Account Balance. | |||
(c) | A Participant shall be vested in the portion of his or her Account Balance attributable to any Company Restoration Matching Amounts, plus amounts credited or debited on such amounts pursuant to Section 3.8, only to the extent that the Participant would be vested in such amounts under the provisions of the 401(k) Plan, as determined by the Committee in its sole discretion. | ||
(d) | Notwithstanding anything to the contrary contained in this Section 3.7, in the event of a Change in Control, or upon a Participants Disability, Separation from Service on or after qualifying for Retirement, or death prior to Separation from Service, any amounts that are not vested in accordance with Sections 3.7(b) or 3.7(c) above, shall immediately become 100% vested. | ||
(e) | Notwithstanding subsection 3.7(d) above, the vesting schedules described in Sections 3.7(b) or 3.7(c) above shall not be accelerated upon a Change in Control to the extent that the Committee determines that such acceleration would cause the deduction limitations of Section 280G of the Code to become effective. In the event of such a determination, the Participant may request independent verification of the Committees calculations with respect to the application of Section 280G. In such case, the Committee must provide to the Participant within 90 days of such a request an opinion from a nationally recognized |
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accounting firm selected by the Participant (the Accounting Firm). The opinion shall state the Accounting Firms opinion that any limitation in the vested percentage hereunder is necessary to avoid the limits of Section 280G and contain supporting calculations. The cost of such opinion shall be paid for by the Company. | |||
(f) | Section 3.7(e) shall not prevent the acceleration of the vesting schedules described in Sections 3.7(b) and 3.7(c) if such Participant is entitled to a gross-up payment, to eliminate the effect of the Code section 4999 excise tax, pursuant to his or her employment agreement or other agreement entered into between such Participant and the Employer. |
3.8 | Crediting/Debiting of Account Balances . In accordance with, and subject to, the rules and procedures that are established from time to time by the Committee, in its sole discretion, amounts shall be credited or debited to a Participants Account Balance in accordance with the following rules: |
(a) | Measurement Funds . Subject to the restrictions found in Section 3.8(c) below, the Participant may elect one or more of the measurement funds selected by the Committee, in its sole discretion, which are based on certain mutual funds (the Measurement Funds), for the purpose of crediting or debiting additional amounts to his or her Account Balance. The Committee may, but is not required to, maintain a Participants Account Balance in accordance with such Participants Measurement Fund elections. As necessary, the Committee may, in its sole discretion, discontinue, substitute or add a Measurement Fund. Each such action will take effect as of the first day of the first calendar quarter that begins at least 30 days after the day on which the Committee gives Participants advance written notice of such change. | ||
(b) | Election of Measurement Funds . Subject to the restrictions found in Section 3.8(c) below, a Participant, in connection with his or her initial deferral election in accordance with Section 3.2 above, shall elect, on the Election Form, one or more Measurement Fund(s) (as described in Section 3.8(a) above) to be used to determine the amounts to be credited or debited to his or her Account Balance. If a Participant does not elect any of the Measurement Funds as described in the previous sentence, the Participants Account Balance shall automatically be allocated into the lowest-risk Measurement Fund, as determined by the Committee, in its sole discretion. Subject to the restrictions found in Section 3.8(c) below, the Participant may (but is not required to) elect, by submitting an Election Form to the Committee that is accepted by the Committee, to add or delete one or more Measurement Fund(s) to be used to determine the amounts to be credited or debited to his or her Account Balance, or to change the portion of his or her Account Balance allocated to each previously or newly elected Measurement Fund. If an election is made in accordance with the previous sentence, it shall apply as of the first business day deemed reasonably practicable by the Committee, in its sole discretion, and shall continue thereafter for each subsequent day in which the Participant participates in the Plan, unless changed in accordance with the previous sentence. Notwithstanding the foregoing, the Committee, in its sole discretion, may impose limitations on the frequency with which one or more of the Measurement Funds elected in accordance with this Section 3.8(b) may be added or deleted by such Participant; furthermore, the Committee, in its sole discretion, may impose limitations on the frequency with which the Participant |
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may change the portion of his or her Account Balance allocated to each previously or newly elected Measurement Fund. | |||
(c) | Celanese Corporation Stock Unit Fund . |
(i) | A Participants Restricted Stock Unit Amounts will be automatically and irrevocably allocated to the Celanese Corporation Stock Unit Fund Measurement Fund. Participants may not select any other Measurement Fund to be used to determine the amounts to be credited or debited to the portion of their Account Balance attributable to Restricted Stock Unit Amounts. Such unit amounts allocated to the Celanese Corporation Stock Unit Fund shall only be distributable in actual shares of Stock. All shares so distributed shall be deemed issued under the 2004 Equity Plan. | ||
(ii) | Subject to the discretion of the Plan Committee, the non-Restricted Stock Unit portion of a Participants Account Balance may be allocated in and out of the Celanese Corporation Stock Unit Fund Measurement Fund in accordance with the rules determined by the Plan Committee from time to time. Distributions from this fund will be paid in cash. | ||
(iii) | Any cash dividends that would have been payable on the Stock credited to a Participants Account Balance shall be credited to the Participants Account Balance in the form of additional shares of Stock and shall automatically and irrevocably be deemed to be re-invested in the Celanese Corporation Stock Unit Fund until such amounts are distributed to the Participant, in the case of Restricted Stock Units, or reallocated out of the fund, in the case of the other portion of the Participants Account Balance. The Participant shall be entitled to be credited with dividend equivalents, calculated as follows: on each date that a cash dividend is paid by the Company, the Participant shall be credited with an additional number of shares of Stock equal to the number of Shares (whole or fractional) using the closing price of the Stock on such date with the aggregate dollar amount of the cash dividend that would have been paid. | ||
(iv) | The number of shares of Stock credited to the Participants Account Balance may be adjusted by the Committee, in its sole discretion, to prevent dilution or enlargement of Participants rights with respect to the portion of his or her Account Balance allocated to the Celanese Corporation Stock Unit Fund in the event of any reorganization, reclassification, stock split, or other unusual corporate transaction or event which affects the value of the Stock, provided that any such adjustment shall be made taking into account any crediting of shares of Stock to the Participant under Section 3.8. | ||
(v) | For purposes of this Section 3.8(c), the closing price of the Stock shall be determined by the Committee in its sole discretion. |
(d) | Proportionate Allocation . In making any election described in Section 3.8(b) above, the Participant shall specify on the Election Form, in increments of one percent (1%), the percentage of his or her Account Balance or Measurement Fund, as applicable, to be allocated/reallocated. |
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(e) | Crediting or Debiting Method . The performance of each Measurement Fund (either positive or negative) will be determined on a daily basis based on the manner in which such Participants Account Balance has been hypothetically allocated among the Measurement Funds by the Participant. | ||
(f) | No Actual Investment . Notwithstanding any other provision of this Plan that may be interpreted to the contrary, the Measurement Funds are to be used for measurement purposes only, and a Participants election of any such Measurement Fund, the allocation of his or her Account Balance thereto, the calculation of additional amounts and the crediting or debiting of such amounts to a Participants Account Balance shall not be considered or construed in any manner as an actual investment of his or her Account Balance in any such Measurement Fund. In the event that the Company or the Trustee (as that term is defined in the Trust), in its own discretion, decides to invest funds in any or all of the investments on which the Measurement Funds are based, no Participant shall have any rights in or to such investments themselves. Without limiting the foregoing, a Participants Account Balance shall at all times be a bookkeeping entry only and shall not represent any investment made on his or her behalf by the Company or the Trust; the Participant shall at all times remain an unsecured creditor of the Company. |
3.9 | FICA and Other Taxes . |
(a) | Annual Deferral Amounts . For each Plan Year in which an Annual Deferral Amount is being withheld from a Participant, the Participants Employer(s) shall withhold from that portion of the Participants Base Salary and/or Bonus that is not being deferred, in a manner determined by the Employer(s), the Participants share of FICA and other employment taxes on such Annual Deferral Amount. If necessary, the Committee may reduce the Annual Deferral Amount for FICA taxes pursuant to Treas. Reg. § 1.409A-3(j)(4)(vi) in order to comply with this Section 3.9. | ||
(b) | Company Restoration Matching Amounts and Company Contribution Amounts . When a Participant becomes vested in a portion of his or her Account Balance attributable to any Company Restoration Matching Amounts and/or Company Contribution Amounts, the Participants Employer(s) shall withhold from that portion of the Participants Base Salary and/or Bonus that is not deferred, in a manner determined by the Employer(s), the Participants share of FICA and other employment taxes on such amounts. If necessary, the Committee may reduce the vested portion of the Participants Company Restoration Matching Amount or Company Contribution Amount, as applicable, for FICA taxes pursuant to Treas. Reg. § 1.409A-3(j)(4)(vi) in order to comply with this Section 3.9. | ||
(c) | Restricted Stock Unit Amounts . For each Plan Year in which a Restricted Stock Unit Amount is being first withheld from an Employee Participant, the Participants Employer(s) shall withhold from that portion of the Participants compensation that is not being deferred, in a manner determined by the Employer(s), the Participants share of FICA and other employment taxes on such Restricted Stock Unit Amount. If necessary, the Committee may reduce the Restricted Stock Unit Amount for FICA taxes pursuant to Treas. Reg. § 1.409A-3(j)(4)(vi) in order to comply with this Section 3.9. |
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(d) | Distributions . The Participants Employer(s), or the trustee of the Trust, shall withhold from any payments made to a Participant under this Plan all federal, state and local income, employment and other taxes required to be withheld by the Employer(s), or the trustee of the Trust, in connection with such payments, in amounts and in a manner to be determined in the sole discretion of the Employer(s) and the trustee of the Trust. |
4.1 | Scheduled Distributions . In connection with each election to defer an Annual Deferral Amount and/or Restricted Stock Unit Amount, a Participant may elect to receive from the Company all or a portion of such Annual Deferral Amount and/or Restricted Stock Unit Amount, plus amounts credited or debited on that amount pursuant to Section 3.8, in the form of a lump sum payment, calculated as of the close of business on or around the Benefit Distribution Date designated by the Participant in accordance with this Section (a Scheduled Distribution). The Benefit Distribution Date for the amount subject to a Scheduled Distribution election shall be the first day of any Plan Year designated by the Participant, which may be no sooner than 2 Plan Years after the end of the Plan Year to which the Participants deferral election relates, unless otherwise provided on an Election Form approved by the Committee. | |
Subject to the other terms and conditions of this Plan, each Scheduled Distribution elected shall be paid out during a 60 day period commencing immediately after the Benefit Distribution Date. By way of example, if a Scheduled Distribution is elected for the Annual Deferral Amount that is earned in the Plan Year commencing January 1, 2008, the earliest Benefit Distribution Date that may be designated by a Participant would be January 1, 2011, and the Scheduled Distribution would be paid out during the 60 day period commencing immediately after such Benefit Distribution Date. | ||
4.2 | Postponing Scheduled Distributions . A Participant may make a one-time election to postpone a Scheduled Distribution described in Section 4.1 above, and have such amount paid out during a 60 day period commencing immediately after an allowable alternative Benefit Distribution Date designated in accordance with this Section 4.2. In order to make such an election, the Participant must submit an Election Form to the Committee in accordance with the following criteria: |
(a) | The election of the new Benefit Distribution Date shall have no effect until at least 12 months after the date on which the election is made; | ||
(b) | The new Benefit Distribution Date selected by the Participant for such Scheduled Distribution must be the first day of a Plan Year that is no sooner than 5 years after the previously designated Benefit Distribution Date; and | ||
(c) | The election must be made at least 12 months prior to the Participants previously designated Benefit Distribution Date for such Scheduled Distribution. | ||
For purposes of applying the provisions of this Section 4.2, a Participants election to postpone a Scheduled Distribution shall not be considered to be made until the date on which the election becomes irrevocable. Such an election shall become irrevocable no later than the date that is 12 |
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months prior to the Participants previously designated Benefit Distribution Date for such Scheduled Distribution. | |||
4.3 | Other Benefits Take Precedence Over Scheduled Distributions . Should an event occur prior to any Benefit Distribution Date designated for a Scheduled Distribution that would trigger a benefit under Section 4.4 or Articles 5 through 9, as applicable, all amounts subject to a Scheduled Distribution election shall be paid in accordance with the other applicable provisions of the Plan and not in accordance with Section 4.1 or 4.2. | ||
4.4 | Unforeseeable Emergencies . |
(a) | If a Participant experiences an Unforeseeable Emergency prior to the occurrence of a distribution event described in Section 4.1 or 4.2 or in Articles 5 through 9, as applicable, the Participant may petition the Committee to receive a partial or full payout from the Plan. The payout, if any, from the Plan shall not exceed the lesser of (i) the Participants vested Account Balance, calculated as of the close of business on or around the Benefit Distribution Date for such payout, as determined by the Committee in accordance with provisions set forth below, or (ii) the amount necessary to satisfy the Unforeseeable Emergency, plus amounts necessary to pay Federal, state, or local income taxes or penalties reasonably anticipated as a result of the distribution. A Participant shall not be eligible to receive a payout from the Plan to the extent that the Unforeseeable Emergency is or may be relieved (A) through reimbursement or compensation by insurance or otherwise, (B) by liquidation of the Participants assets, to the extent the liquidation of such assets would not itself cause severe financial hardship or (C) by cessation of deferrals under this Plan. | ||
If the Committee, in its sole discretion, approves a Participants petition for payout from the Plan, the Participants Benefit Distribution Date for such payout shall be the date on which such Committee approval occurs and such payout shall be distributed to the Participant in a lump sum no later than 60 days after such Benefit Distribution Date. In addition, in the event of such approval the Participants outstanding deferral elections under the Plan shall be cancelled. | |||
(b) | A Participants deferral elections under this Plan shall also be cancelled to the extent the Committee determines that such action is required for the Participant to obtain a hardship distribution from an Employers 401(k) Plan pursuant to Treas. Reg. §1.401(k)-1(d)(3). |
5.1 | Change in Control Benefit . A Participant, in connection with his or her commencement of participation in the Plan, shall have an opportunity to irrevocably elect to receive his or her Account Balance from the Company in the form of a lump sum payment in the event that a Change in Control occurs prior to the Participants Separation from Service, Disability or death (the Change in Control Benefit). The Benefit Distribution Date for the Change in Control Benefit, if any, shall be the date on which the Change in Control occurs. |
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If a Participant elects not to receive a Change in Control Benefit, or fails to make an election in connection with his or her commencement of participation in the Plan, the Participants Account Balance shall be paid in accordance with the other applicable provisions of the Plan. | ||
5.2 | Payment of Change in Control Benefit . The Change in Control Benefit, if any, shall be calculated as of the close of business on or around the Participants Benefit Distribution Date, as determined by the Committee, and paid to the Participant no later than 60 days after the Participants Benefit Distribution Date. |
6.1 | Retirement Benefit . If a Participant experiences a Separation from Service that qualifies as a Retirement, the Participant shall be eligible to receive his or her vested Account Balance in either a lump sum or annual installment payments, as elected by the Participant in accordance with Section 6.2 (the Retirement Benefit). | |
A Participants Retirement Benefit shall be calculated as of the close of business on or around the applicable Benefit Distribution Date for such benefit, which shall be: |
(a) | the first day after the end of the 6-month period immediately following the date on which the Participant experiences such Separation from Service, if the Participant initially elected to receive the Retirement Benefit in a lump sum; and | ||
(b) | the later of (i) the first day after the end of the 6-month period immediately following the date on which the Participant experiences such Separation from Service or (ii) the January 1 following the date on which the Participant experiences such Separation from Service, if the Participant initially elected to receive the Retirement Benefit in annual installment payments; | ||
(c) | provided, however , if a Participant changes the form of distribution for the Retirement Benefit in accordance with Section 6.2(b), the Benefit Distribution Date for the Retirement Benefit shall be determined in accordance with Section 6.2(b). |
6.2 | Payment of Retirement Benefit . |
(a) | A Participant, in connection with his or her commencement of participation in the Plan, shall elect on an Election Form to receive the Retirement Benefit in a lump sum or pursuant to an Annual Installment Method of up to 15 years. If a Participant does not make any election with respect to the payment of the Retirement Benefit, then such Participant shall be deemed to have elected to receive the Retirement Benefit as a lump sum. | ||
(b) | A Participant may make one election to change the form of payment for the Retirement Benefit by submitting an Election Form to the Committee in accordance with the following criteria: |
(i) | The election shall not take effect until at least 12 months after the date on which the election is made; |
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(ii) | The new Benefit Distribution Date for the Participants Retirement Benefit shall be 5 years after the Benefit Distribution Date that would otherwise have been applicable to such benefit; and | ||
(iii) | The election must be made at least 12 months prior to the Benefit Distribution Date that would otherwise have been applicable to the Participants Retirement Benefit. | ||
For purposes of applying the provisions of this Section 6.2(b), a Participants election to change the form of payment for the Retirement Benefit shall not be considered to be made until the date on which the election becomes irrevocable. Such an election shall become irrevocable no later than the date that is 12 months prior to the Benefit Distribution Date that would otherwise have been applicable to the Participants Retirement Benefit. Subject to the requirements of this Section 6.2(b), the Election Form most recently accepted by the Committee that has become effective shall govern the form of payout of the Participants Retirement Benefit. |
(c) | The lump sum payment shall be made, or installment payments shall commence, no later than 60 days after the Participants Benefit Distribution Date. Remaining installments, if any, shall be paid no later than 60 days after each anniversary of the Participants Benefit Distribution Date. |
7.1 | Termination Benefit . If a Participant experiences a Separation from Service that does not qualify as a Retirement, the Participant shall receive his or her vested Account Balance in the form of a lump sum payment (the Termination Benefit). A Participants Termination Benefit shall be calculated as of the close of business on or around the Benefit Distribution Date for such benefit, which shall be the first day after the end of the 6-month period immediately following the date on which the Participant experiences such Separation from Service. | |
7.2 | Payment of Termination Benefit . The Termination Benefit shall be paid to the Participant no later than 60 days after the Participants Benefit Distribution Date. |
8.1 | Disability Benefit . If a Participant becomes Disabled prior to the occurrence of a distribution event described in Articles 5 through 7, as applicable, the Participant shall receive his or her Account Balance in the form of a lump sum payment (the Disability Benefit). The Disability Benefit shall be calculated as of the close of business on or around the Participants Benefit Distribution Date for such benefit, which shall be the date on which the Committee is able to determine that the Participant is Disabled. |
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8.2 | Payment of Disability Benefit . The Disability Benefit shall be paid to the Participant no later than 60 days after the Participants Benefit Distribution Date. |
9.1 | Death Benefit . In the event of a Participants death prior to the complete distribution of his or her Account Balance, the Participants Beneficiary(ies) shall receive the Participants unpaid Account Balance in a lump sum payment (the Death Benefit). The Death Benefit shall be calculated as of the close of business on or around the Benefit Distribution Date for such benefit, which shall be the date on which the Committee is provided with proof that is satisfactory to the Committee of the Participants death. | |
9.2 | Payment of Death Benefit . The Death Benefit shall be paid to the Participants Beneficiary(ies) no later than 60 days after the Participants Benefit Distribution Date. |
10.1 | Beneficiary . Each Participant shall have the right, at any time, to designate his or her Beneficiary(ies) (both primary as well as contingent) to receive any benefits payable under the Plan to a beneficiary upon the death of a Participant. The Beneficiary designated under this Plan may be the same as or different from the Beneficiary designation under any other plan of an Employer in which the Participant participates. | |
10.2 | Beneficiary Designation; Change; Spousal Consent . A Participant shall designate his or her Beneficiary by completing and signing the Beneficiary Designation Form, and returning it to the Committee or its designated agent. A Participant shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Committees rules and procedures, as in effect from time to time. If the Participant names someone other than his or her spouse as a Beneficiary, the Committee may, in its sole discretion, determine that spousal consent is required to be provided in a form designated by the Committee, executed by such Participants spouse and returned to the Committee. Upon the acceptance by the Committee of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be canceled. The Committee shall be entitled to rely on the last Beneficiary Designation Form filed by the Participant and accepted by the Committee prior to his or her death. | |
10.3 | Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received and acknowledged in writing by the Committee or its designated agent. | |
10.4 | No Beneficiary Designation . If a Participant fails to designate a Beneficiary as provided in Sections 10.1, 10.2 and 10.3 above or, if all designated Beneficiaries predecease the Participant or die prior to complete distribution of the Participants benefits, then the Participants designated Beneficiary shall be deemed to be his or her surviving spouse. If the Participant has no surviving spouse, the benefits remaining under the Plan to be paid to a Beneficiary shall be payable to the executor or personal representative of the Participants estate. |
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10.5 | Doubt as to Beneficiary . If the Committee has any doubt as to the proper Beneficiary to receive payments pursuant to this Plan, the Committee shall have the right, exercisable in its discretion, to cause the Participants Employer to withhold such payments until this matter is resolved to the Committees satisfaction. | |
10.6 | Discharge of Obligations . The payment of benefits under the Plan to a Beneficiary shall fully and completely discharge all Employers and the Committee from all further obligations under this Plan with respect to the Participant, and that Participants Plan Agreement shall terminate upon such full payment of benefits. |
11.1 | Paid Leave of Absence . If a Participant is authorized by the Participants Employer to take a paid leave of absence from the employment of the Employer, and such leave of absence does not constitute a Separation from Service, (a) the Participant shall continue to be considered eligible for the benefits provided under the Plan, and (b) the Annual Deferral Amount shall continue to be withheld during such paid leave of absence in accordance with Section 3.2. | |
11.2 | Unpaid Leave of Absence . If a Participant is authorized by the Participants Employer to take an unpaid leave of absence from the employment of the Employer for any reason, and such leave of absence does not constitute a Separation from Service, such Participant shall continue to be eligible for the benefits provided under the Plan. During the unpaid leave of absence, the Participant shall not be allowed to make any additional deferral elections. However, if the Participant returns to employment, the Participant may elect to defer an Annual Deferral Amount and/or Restricted Stock Unit Amount for the Plan Year following his or her return to employment and for every Plan Year thereafter while a Participant in the Plan, provided such deferral elections are otherwise allowed and an Election Form is delivered to and accepted by the Committee for each such election in accordance with Section 3.2 above. |
12.1 | Termination of Plan . Although each Employer anticipates that it will continue the Plan for an indefinite period of time, there is no guarantee that any Employer will continue the Plan or will not terminate the Plan at any time in the future. Accordingly, each Employer reserves the right to terminate the Plan with respect to all of its Participants. In the event of a Plan termination no new deferral elections shall be permitted for the affected Participants and such Participants shall no longer be eligible to receive new company contributions. However, after the Plan termination the Account Balances of such Participants shall continue to be credited with Annual Deferral Amounts and Restricted Stock Unit Amounts attributable to any deferral election that was in effect prior to the Plan termination to the extent deemed necessary to comply with Code Section 409A and related Treasury Regulations, and additional amounts shall continue to credited or debited to such Participants Account Balances pursuant to Section 3.8. The Measurement Funds available to Participants following the termination of the Plan shall be comparable in number and type to those Measurement Funds available to Participants in the Plan Year |
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13.1 | Committee Duties . Except as otherwise provided in this Article 13, this Plan shall be administered by a Committee, which shall consist of the Board, or such committee as the Board shall appoint. Members of the Committee may be Participants under this Plan. The Committee shall also have the discretion and authority to (a) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Plan, and (b) decide or resolve any and all questions, including benefit entitlement determinations and interpretations of this Plan, as may arise in connection with the Plan. Any individual serving on the Committee who is a Participant shall not vote or act on any matter relating solely to himself or herself. When making a determination or calculation, the Committee shall be entitled to rely on information furnished by a Participant or the Company. | |
13.2 | Administration Upon Change In Control . Within 120 days following a Change in Control, the individuals who comprised the Committee immediately prior to the Change in Control (whether or not such individuals are members of the Committee following the Change in Control) may, by written consent of the majority of such individuals, appoint an independent third party |
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administrator (the Administrator) to perform any or all of the Committees duties described in Section 13.1 above, including without limitation, the power to determine any questions arising in connection with the administration or interpretation of the Plan, and the power to make benefit entitlement determinations. Upon and after the effective date of such appointment, (a) the Company must pay all reasonable administrative expenses and fees of the Administrator, and (b) the Administrator may only be terminated with the written consent of the majority of Participants with an Account Balance in the Plan as of the date of such proposed termination. | ||
13.3 | Agents . In the administration of this Plan, the Committee or the Administrator, as applicable, may, from time to time, employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel. | |
13.4 | Binding Effect of Decisions . The decision or action of the Committee or Administrator, as applicable, with respect to any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Plan. | |
13.5 | Indemnity of Committee . All Employers shall indemnify and hold harmless the members of the Committee, any Employee to whom the duties of the Committee may be delegated, and the Administrator against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Plan, except in the case of willful misconduct by the Committee, any of its members, any such Employee or the Administrator. | |
13.6 | Employer Information . To enable the Committee and/or Administrator to perform its functions, the Company and each Employer shall supply full and timely information to the Committee and/or Administrator, as the case may be, on all matters relating to the Plan, the Trust, the Participants and their Beneficiaries, the Account Balances of the Participants, the compensation of its Participants, the date and circumstances of the Separation from Service, Disability or death of its Participants, and such other pertinent information as the Committee or Administrator may reasonably require. |
14.1 | Coordination with Other Benefits . The benefits provided for a Participant and Participants Beneficiary under the Plan are in addition to any other benefits available to such Participant under any other plan or program for employees of the Participants Employer. The Plan shall supplement and shall not supersede, modify or amend any other such plan or program except as may otherwise be expressly provided. |
15.1 | Presentation of Claim . Any Participant or Beneficiary of a deceased Participant (such Participant or Beneficiary being referred to below as a Claimant) may deliver to the Committee a written claim for a determination with respect to the amounts distributable to such |
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Claimant from the Plan. If such a claim relates to the contents of a notice received by the Claimant, the claim must be made within 60 days after such notice was received by the Claimant. All other claims must be made within 180 days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the Claimant. | ||
15.2 | Notification of Decision . The Committee shall consider a Claimants claim within a reasonable time, but no later than 90 days after receiving the claim. If the Committee determines that special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial 90 day period. In no event shall such extension exceed a period of 90 days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Committee expects to render the benefit determination. The Committee shall notify the Claimant in writing: |
(a) | that the Claimants requested determination has been made, and that the claim has been allowed in full; or | ||
(b) | that the Committee has reached a conclusion contrary, in whole or in part, to the Claimants requested determination, and such notice must set forth in a manner calculated to be understood by the Claimant: |
(i) | the specific reason(s) for the denial of the claim, or any part of it; | ||
(ii) | specific reference(s) to pertinent provisions of the Plan upon which such denial was based; | ||
(iii) | a description of any additional material or information necessary for the Claimant to perfect the claim, and an explanation of why such material or information is necessary; | ||
(iv) | an explanation of the claim review procedure set forth in Section 15.3 below; and | ||
(v) | a statement of the Claimants right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on review. |
15.3 | Review of a Denied Claim . On or before 60 days after receiving a notice from the Committee that a claim has been denied, in whole or in part, a Claimant (or the Claimants duly authorized representative) may file with the Committee a written request for a review of the denial of the claim. The Claimant (or the Claimants duly authorized representative): |
(a) | may, upon request and free of charge, have reasonable access to, and copies of, all documents, records and other information relevant (as defined in applicable ERISA regulations) to the claim for benefits; | ||
(b) | may submit written comments or other documents; and/or | ||
(c) | may request a hearing, which the Committee, in its sole discretion, may grant. |
15.4 | Decision on Review . The Committee shall render its decision on review promptly, and no later than 60 days after the Committee receives the Claimants written request for a review of the denial of the claim. If the Committee determines that special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the |
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Claimant prior to the termination of the initial 60 day period. In no event shall such extension exceed a period of 60 days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Committee expects to render the benefit determination. In rendering its decision, the Committee shall take into account all comments, documents, records and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. The decision must be written in a manner calculated to be understood by the Claimant, and it must contain: |
(a) | specific reasons for the decision; | ||
(b) | specific reference(s) to the pertinent Plan provisions upon which the decision was based; | ||
(c) | a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of, all documents, records and other information relevant (as defined in applicable ERISA regulations) to the Claimants claim for benefits; and | ||
(d) | a statement of the Claimants right to bring a civil action under ERISA Section 502(a). |
15.5 | Legal Action . A Claimants compliance with the foregoing provisions of this Article 15 is a mandatory prerequisite to a Claimants right to commence any legal action with respect to any claim for benefits under this Plan. |
16.1 | Establishment of the Trust . In order to provide assets from which to fulfill its obligations to the Participants and their Beneficiaries under the Plan, the Company may establish a trust by a trust agreement with a third party, the trustee, to which the Company and each Employer may, in their discretion, contribute cash or other property, including securities issued by the Company, to provide for the benefit payments under the Plan (the Trust). | |
16.2 | Interrelationship of the Plan and the Trust . The provisions of the Plan and the Plan Agreement shall govern the rights of a Participant to receive distributions pursuant to the Plan. The provisions of the Trust shall govern the rights of the Employers, Participants and the creditors of the Employers to the assets transferred to the Trust. Each Employer shall at all times remain liable to carry out its obligations under the Plan. | |
16.3 | Distributions From the Trust . The Companys obligations under the Plan may be satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such distribution shall reduce the Companys obligations under this Plan. |
17.1 | Status of Plan . The Plan is intended to be a plan that is not qualified within the meaning of Code Section 401(a) and that is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees within the meaning of ERISA Sections 201(2), 301(a)(3) and |
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401(a)(1). The Plan shall be administered and interpreted (a) to the extent possible in a manner consistent with the intent described in the preceding sentence, and (b) in accordance with Code Section 409A and related Treasury guidance and Regulations. | ||
17.2 | Unsecured General Creditor . Participants and their Beneficiaries, heirs, successors and assigns shall have no legal or equitable rights, interests or claims in any property or assets of the Company or any Employer. For purposes of the payment of benefits under this Plan, any and all of the Companys assets shall be, and remain, the general, unpledged unrestricted assets of the Company. The Companys obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future. | |
17.3 | Employers Liability . The Companys liability for the payment of benefits shall be defined only by the Plan and the Plan Agreement, as entered into between the Company and a Participant. The Company shall have no obligation to a Participant under the Plan except as expressly provided in the Plan and his or her Plan Agreement. Employers under the Plan shall have no obligations to pay any amounts under the Plan. | |
17.4 | Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate, alienate or convey in advance of actual receipt, the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are expressly declared to be, unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure, attachment, garnishment or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, be transferable by operation of law in the event of a Participants or any other persons bankruptcy or insolvency or be transferable to a spouse as a result of a property settlement or otherwise. | |
17.5 | Not a Contract of Employment . The terms and conditions of this Plan shall not be deemed to constitute a contract of employment between the Company or any Employer and the Participant. Such employment is hereby acknowledged to be an at will employment relationship that can be terminated at any time for any reason, or no reason, with or without cause, and with or without notice, unless expressly provided in a written employment agreement. Nothing in this Plan shall be deemed to give a Participant the right to be retained in the service of any Employer, either as an Employee or a Director, or to interfere with the right of any Employer to discipline or discharge the Participant at any time. | |
17.6 | Furnishing Information . A Participant or his or her Beneficiary will cooperate with the Committee by furnishing any and all information requested by the Committee and take such other actions as may be requested in order to facilitate the administration of the Plan and the payments of benefits hereunder, including but not limited to taking such physical examinations as the Committee may deem necessary. | |
17.7 | Terms . Whenever any words are used herein in the masculine, they shall be construed as though they were in the feminine in all cases where they would so apply; and whenever any words are used herein in the singular or in the plural, they shall be construed as though they were used in the plural or the singular, as the case may be, in all cases where they would so apply. | |
17.8 | Captions . The captions of the articles, sections and paragraphs of this Plan are for convenience only and shall not control or affect the meaning or construction of any of its provisions. |
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17.9 | Governing Law . Subject to ERISA, the provisions of this Plan shall be construed and interpreted according to the internal laws of the State of Delaware without regard to its conflicts of laws principles. | |
17.10 | Notice . Any notice or filing required or permitted to be given to the Committee under this Plan shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below: |
Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. | ||
Any notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Participant. | ||
17.11 | Successors . The provisions of this Plan shall bind and inure to the benefit of the Participants Employer and its successors and assigns and the Participant and the Participants designated Beneficiaries. | |
17.12 | Spouses Interest . The interest in the benefits hereunder of a spouse of a Participant who has predeceased the Participant shall automatically pass to the Participant and shall not be transferable by such spouse in any manner, including but not limited to such spouses will, nor shall such interest pass under the laws of intestate succession. | |
17.13 | Validity . In case any provision of this Plan shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal or invalid provision had never been inserted herein. | |
17.14 | Incompetent . If the Committee determines in its discretion that a benefit under this Plan is to be paid to a minor, a person declared incompetent or to a person incapable of handling the disposition of that persons property, the Committee may direct payment of such benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent or incapable person. The Committee may require proof of minority, incompetence, incapacity or guardianship, as it may deem appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Participant and the Participants Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Plan for such payment amount. | |
17.15 | Domestic Relations Orders . Notwithstanding Section 17.4, if necessary to comply with a domestic relations order, as defined in Code Section 414(p)(1)(B), pursuant to which a court has determined that a spouse or former spouse of a Participant has an interest in the Participants benefits under the Plan, the Committee shall have the right to immediately distribute the spouses or former spouses interest in the Participants benefits under the Plan to such spouse or former spouse. Such amount shall be distributed in a lump sum no later than 60 days after the Committee approves such domestic relations order. |
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17.16 | Distribution in the Event of Income Inclusion Under Code Section 409A . If any portion of a Participants Account Balance under this Plan is required to be included in income by the Participant prior to receipt due to a failure of this Plan to comply with the requirements of Code Section 409A and related Treasury Regulations, the Committee may determine that such Participant shall receive a distribution from the Plan in an amount equal to the lesser of (a) the portion of his or her Account Balance required to be included in income as a result of the failure of the Plan to comply with the requirements of Code Section 409A and related Treasury Regulations, or (b) the unpaid vested Account Balance. | |
17.17 | Deduction Limitation on Benefit Payments . If an Employer reasonably anticipates that the Employers deduction with respect to any distribution from this Plan would be limited or eliminated by application of Code Section 162(m), then to the extent permitted by Treas. Reg. §1.409A-2(b)(7)(i), payment shall be delayed as deemed necessary to ensure that the entire amount of any distribution from this Plan is deductible. Any amounts for which distribution is delayed pursuant to this Section shall continue to be credited/debited with additional amounts in accordance with Section 3.8. The delayed amounts (and any amounts credited thereon) shall be distributed to the Participant (or his or her Beneficiary in the event of the Participants death) at the earliest date the Employer reasonably anticipates that the deduction of the payment of the amount will not be limited or eliminated by application of Code Section 162(m). To the extent deemed necessary to comply with Treas. Reg. §1.409A-3(i)(2), in the event that such date is determined to be after a Participants Separation from Service the delayed payment shall not be made before the end of the six-month period following such Participants Separation from Service. | |
IN WITNESS WHEREOF, the Company has signed this Plan document as of December 7, 2007. |
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Exhibit 10.31
March 27, 2007
Mr. James S. Alder
606 Chandon Court
Southlake, Texas 76092
Dear Jim:
Due to your outstanding and continued contribution to Celanese Corporation (the Company), we are offering you the following retention package to retain your services through December 31, 2010. Our offer is contingent upon you accepting this proposal and the Replacement EPP Program that was previously presented to you no later than April 2, 2007 and approval by our Compensation Committee.
Salary Level and Annual
Bonus
You will be promoted to Salary Level 1 effective April 1, 2007. Salary Level 1
includes an annual bonus opportunity at target of 80% of your annual salary
(the Target).
Base Salary and Annual Salary
Increase
Your base salary will increase to $350,000 per year, effective April 1, 2007,
payable in accordance with the Companys normal payroll practice. On April 1,
2008, April 1, 2009 and April 1, 2010, your base salary will be increased by
10% of the prior years salary.
Retention Bonuses
You will be entitled to a retention bonus of $500,000 payable on or about
January 1, 2010, and $1,000,000 payable on or about January 1, 2011.
Jim, we are most enthusiastic about your continued employment with the Company. If these provisions are agreeable to you, please sign the enclosed copy of this letter and return it to me at your earliest convenience.
Sincerely,
/s/ T. Denny
Iker
T. Denny Iker
Senior Vice President, Human Resources
Agreed to this 2nd day of April, 2007
/s/ James S.
Alder
James S. Alder
cc: Dave Weidman
Tom Currier |
Canada
Canada
Canada
Netherlands
Great Britain
Germany
Italy
France
Canada
France
France
Delaware
Canada
Delaware
North Carolina
Canada
Canada
Germany
Cayman Islands
Delaware
Delaware
Germany
Germany
China
China
China
China
China
China
Great Britain
Delaware
Delaware
Delaware
Argentina
Canada
Cayman
Germany
Spain
Delaware
India
Netherlands
South Africa
Great Britain
Brazil
Netherlands
Germany
Great Britain
Sweden
Germany
Germany
China/Hong Kong
Delaware
Delaware
Germany
Germany
Netherlands
Delaware
Hungary
Delaware
Luxembourg
Japan
Korea
Texas
Delaware
Slovenia
Singapore
Belgium
Singapore
Japan
Delaware
Delaware
Vermont
Delaware
Delaware
Delaware
Delaware
Mexico
Canada
Bermuda
Delaware
Mexico
Canada
Germany
Delaware
Germany
Germany
Delaware
Australia
Argentina
Belgium
France
Delaware
Japan
Germany
Mexico
Germany
Mexico
Germany
Mexico
Austria
Belgium
Czech Republic
Delaware
France
Germany
Hungary
Spain
South Korea
Italy
Japan
Korea
Delaware
Denmark
Finland
Sweden
Netherlands
Delaware
Brazil
Delaware
Russia
Great Britain
France
Germany
Germany
Delaware
Germany
Germany
/s/ David
N. Weidman
|
/s/ Steven
M. Sterin
|
/s/ David
N. Weidman
|
/s/ Steven
M. Sterin
|
Additions | ||||||||||||||||||||
Charged to
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Charged to
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Balance at
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Costs and
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other
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Balance at
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|||||||||||||||||
Beginning of Year | Expenses | Accounts | Deductions | End of Year | ||||||||||||||||
{(In $ millions) | ||||||||||||||||||||
Year Ended December 31, 2005
|
||||||||||||||||||||
Deducted from asset accounts:
|
||||||||||||||||||||
Allowance for Doubtful Accounts
|
22 | 2 | | (8 | ) (a) | 16 | ||||||||||||||
Valuation allowance for deferred tax assets
|
648 | 20 | 73 | (b) | (31 | ) (c) | 710 | |||||||||||||
Year Ended December 31, 2006
|
||||||||||||||||||||
Deducted from asset accounts:
|
||||||||||||||||||||
Allowance for Doubtful Accounts
|
16 | 1 | | (1 | ) (a) | 16 | ||||||||||||||
Valuation allowance for deferred tax assets
|
710 | 8 | 1 | (b) | (259 | ) (b)(d) | 460 | |||||||||||||
Year Ended December 31, 2007
|
||||||||||||||||||||
Deducted from asset accounts:
|
||||||||||||||||||||
Allowance for Doubtful Accounts
|
16 | 6 | | (4 | ) (a) | 18 | ||||||||||||||
Valuation allowance for deferred tax assets
|
460 | 27 | 33 | (b) | (209 | ) (b)(d) | 311 |
(a) | Includes foreign currency translation effects and uncollected accounts written off, net of recoveries | |
(b) | Represents amount charged to goodwill as a result of purchase accounting and Accumulated other comprehensive income (loss), net | |
(c) | Represents reversal of valuation allowance on German deferred tax assets, primarily net operating loss carryforwards | |
(d) | Includes reductions to valuation allowances associated with reductions in net deferred tax assets not resulting in net expense or benefit |