Exhibit 4.2
Domination and Profit and Loss Transfer Agreement
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between
BCP Crystal Acquisition GmbH & Co. KG, Stuttgart
- "BCP" -
and
Celanese AG, ▇▇▇▇▇▇▇▇ i.T.
- "Celanese" -
(1) Celanese shall submit the management of its company under the control of
BCP.
(2) In accordance with this, BCP shall be entitled to give instructions to the
management board of Celanese with respect to the management of the
company.
Section 2
Profit Transfer
(1) Celanese is obligated to transfer its entire profits to BCP. Subject to
the creation or dissolution of reserves in accordance with para. 2 of this
Section 2 the annual net income which would accrue without the profit
transfer, reduced by a possible loss carried forward from the preceding
year and the amount to be allocated to the legal reserve, must be
transferred.
(2) With the consent of BCP, Celanese may allocate parts of the annual net
income to other earnings reserves (Section 272 para 3 of the German
Commercial Code), insofar as this is admissible under commercial law and
economically justified by a sound commercial judgement. Other earnings
reserves pursuant to Section 272, para. 3 of the German Commercial Code
created during the term of this Agreement shall be dissolved upon the
demand of BCP and used to compensate an annual net loss or transferred as
profits. Other reserves and profit carried forward from the time before
the term of this Agreement may not be transferred as profit or used to
compnesate an annual net loss.
(3) The obligation to transfer profit first applies to the entire profit of
the (short) fiscal year in which this Agreement becomes valid in
accordance with Section 6, para. 2, sentence 1 (retroactive effect of the
profit transfer to the beginning of the (short) fiscal year). The
obligation becomes due at the end of each fiscal year and bears interest
of 5% p.a. from that date.
Section 3
Assumption of Loss
(1) BCP is obligated to compensate Celanese for each annual net loss that
would otherwise arise during the term of this Agreement, unless such loss
is compensated for by withdrawing, in accordance with Section 2, para. 2,
sentence 2, amounts from the other earnings reserves that have been
allocated to them during the term of this Agreement.
(2) Section 2, para. 3 applies correspondingly to the obligation to compensate
losses.
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Section 4
Guaranteed Dividend
(1) BCP hereby guarantees vis-a-vis the outside shareholders of Celanese an
adequate guaranteed dividend in the form of a recurring cash payment
(guaranteed dividend). This guaranteed dividend payment shall add up to a
gross amount of EUR 3.27 per non-par value share for each full fiscal year
minus corporation tax and solidarity surcharge in accordance with the rate
applicable to each of these taxes for the fiscal year concerned, whereby
this deduction is to be calculated only on the basis of the pro rata
guaranteed dividend of EUR 1.45 per non-par value share, included in the
gross amount, arising from profits subject to German corporation tax.
Taking into account the circumstances at the time of the conclusion of
this Agreement, 25% corporation tax plus 5.5% solidarity surcharge, that
is EUR 0.38, are deducted from the pro rata guaranteed dividend of EUR
1.45 per non-par value share arising from the profits subject to German
corporation tax. Together with the remaining pro rata guraranteed dividend
of EUR 1.82 per non-par value share arising from profits not subject to
German corporation tax and taking into account the circumstances at the
time of the conclusion of this Agreement, this results in a guaranteed
dividend payment in the amount of EUR 2.89 per non-par value share for a
full fiscal year.
(2) The guaranteed dividend payment shall become due on the first banking day
following the annual shareholders' meeting of Celanese for the preceding
fiscal year. The guaranteed dividend shall be granted beginning with the
fiscal year in which this Agreement takes effect in accordance with
Section 6, para 2. If this Agreement terminates during a Celanese fiscal
year or if, during the period of time for which the obligation to transfer
profit in accordance with Section 2, para. 3 applies, Celanese forms a
short fiscal year, the guaranteed dividend shall be reduced pro rata
temporis.
(3) If Celanese's share capital is increased by way of conversion of the
company's funds in return for the issuance of new shares, the guaranteed
dividend per share shall decrease in such a way that the total amount of
the guaranteed dividend remains unchanged.
(4) If Celanese's share capital is increased by means of a contribution in
cash or in kind, the rights arising from this Section 4 shall also apply
to the shares resulting from the capital increase subscribed to by outside
shareholders.
(5) In the case that proceedings concerning the adequacy of the guaranteed
dividend ("Spruchverfahren") pursuant to the respective Act
("Spruchverfahrensgesetz") are initiated and the court determines a higher
guaranteed dividend by non-appealable decision, the outside shareholders
shall be entitled to request a corresponding supplement to the guaranteed
dividend they have received, even if they have already tendered their
shares in return for compensation. Likewise, all outside shareholders
shall be treated equally if BCP, in a settlement to avert or terminate
proceedings concerning the adequacy of the guaranteed dividend
("Spruchverfahren") pursuant to the respective Act
("Spruchverfahrensgesetz"), agrees to a higher guaranteed dividend
vis-a-vis a Celanese shareholder.
Section 5
Compensation
(1) Upon demand of an outside shareholder of Celanese, BCP shall acquire his
shares in return for a cash compensation of EUR 41.92 per non-par value
share.
(2) The obligation of BCP to acquire shares is limited to a specific period of
time. The period of time shall expire three months after the date on which
the registration of this Agreement in the commercial register of Celanese
shall be deemed to have been announced in accordance with Section 10 of
the German Commercial Code, but not earlier than three month after the
beginning of the fiscal year of Celanese following the one commencing on
January 1, 2004. An extension of the time period pursuant to Section 305,
para. 4, sentence 3 of the German Stock Corporation Act due to a motion
for determination of the guaranteed dividend or the compensation by the
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court specified in Section 2 Spruchverfahrensgesetz shall remain
unaffected; in this case, the period of time expires two months after the
date on which the decision on the last motion ruled on has been announced
in the Federal Gazette.
(3) The sale of the shares shall be free of cost for Celanese shareholders.
(4) If, by the expiration of the time period defined in para. 2 of this
Section 5, Celanese's share capital is increased by way of conversion of
the company's funds in return for the issuance of new shares, the
compensation per share shall decrease in such a way that the total amount
of the compensation remains the same. If Celanese's share capital is
increased by means of a contribution in cash or in kind, the rights
arising from this Section 5 shall apply also to the shares resulting from
the capital increase subscribed to by outside shareholders.
(5) In the case that proceedings concerning the adequacy of the compensation
("Spruchverfahren") pursuant to the respective Act
("Spruchverfahrensgesetz") are initiated and the court determines an
increased compensation by non-appealable decision, the outside
shareholders shall be entitled to request a corresponding supplement to
the compensation they have received, even if they have already tendered
their shares in return for compensation. In the same way, all outside
shareholders shall be treated equally if BCP, in a settlement to avert or
terminate proceedings concerning the adequacy of the compensation
("Spruchverfahren") pursuant to the respective Act
("Spruchverfahrensgesetz"), agrees to a higher compensation vis-a-vis a
Celanese shareholder.
Section 6
Effectiveness and Term
(1) This Agreement is concluded subject to the consent of the supervisory
board of Celanese. It also requires the consent of the shareholders'
meeting of Celanese and the consent of all partners of BCP.
(2) This Agreement shall become valid upon its registration in the commercial
register at the registered office of Celanese, however not earlier than
the beginning of the fiscal year of Celanese following the one commencing
on January 1, 2004. Section 2, para. 3 and Section 3, para. 2 shall remain
unaffected.
(3) This Agreement can be terminated in writing, subject to a notice period of
six months, to the end of a fiscal year of Celanese. This Agreement may be
terminated for the first time as of the end of the fiscal year that
expires at least five years after the beginning of the fiscal year in
which it becomes valid in accordance with para. 2, sentence 1 of this
Section 6. In determining whether or not the notice period has been
complied with, the point in time at which the letter of termination is
received by the respective other party to this Agreement shall be
decisive.
(4) The right to terminate this Agreement for good cause without notice shall
remain unaffected. Good causes are, in particular, those within the
meaning of Section 14, para. 1, item 3, sentence 2 of the German
Corporation Tax Act and the loss of the majority of the voting rights
resulting from the shares in Celanese.
Section 7
Final Provisions
(1) The parties have translated this Agreement into the English language,
translations in other languages may possibly follow. However, only the
German language version of the Agreement is binding.
(2) Should a present or future provision of this Agreement be or become
entirely or partly invalid or impracticable, or should there be an
omission in this Agreement, the validity of the remaining provisions shall
not be affected thereby. The parties to this Agreement, in the place of
the invalid or impracticable provision or
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in order to fill in the omission, undertake to agree on an appropriate
provision that, within the framework of what is legally permissible, comes
closest to what the parties to this Agreement intended or would have
intended in accordance with the purpose of this Agreement if they had
considered the point.
▇▇▇▇▇▇▇▇ im Taunus, June 22, 2004
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Celanese AG
▇▇. ▇▇▇▇▇▇▇ Kaffanke
Celanese AG
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BCP Crystal Acquisition GmbH & Co. KG
New York, June 21, 2004
▇▇▇▇▇ ▇. ▇▇▇
BCP Crystal Acquisition GmbH & Co. KG
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The Registrant hereby represents that the above English translation is a fair
and accurate English translation of the Domination Agreement.
Celanese AG
/s/ ▇▇. ▇▇▇▇▇▇▇ Kaffanke
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▇▇. ▇▇▇▇▇▇▇ Kaffanke