Document
As filed with the Securities and Exchange Commission on April 24, 2018
Registration No. 333- __________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Celanese Corporation
(Exact name of registrant as specified in its charter)
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Delaware | | 98-0420726 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
222 W. Las Colinas Blvd., Suite 900N, Irving, TX 75039
(Address of Principal Executive Offices)
Celanese Corporation 2018 Global Incentive Plan
(Full title of the plan)
James R. Peacock III
Vice President, Deputy General Counsel and Corporate Secretary
222 W. Las Colinas Blvd., Suite 900N
Irving, TX 75039
(Name and address of agent for service)
(972) 443-4000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and “emerging growth” company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer þ | | Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
| | Emerging growth company o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share (2) | Proposed Maximum Aggregate Offering Price (2) | Amount of Registration Fee |
Series A Common Stock, par value $0.0001 per share | 2,500,000 shares | $111.38 | $278,450,000.00 | $ 34,667.02 |
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(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares that may be issued under the compensatory stock plan described herein because of any future stock split, stock dividend or similar adjustment in the Company’s Series A Common Stock, par value $0.0001 per share (“Common Stock”), effected without receipt of consideration that increases the number of shares of Common Stock. |
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(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) of the Securities Act. The maximum aggregate offering price is based on 2,500,000 shares available for issuance under the plan, multiplied by $111.38, the average of the high and low prices of the Common Stock as reported on The New York Stock Exchange on April 20, 2018, a date that is within five business days prior to filing. |
TABLE OF CONTENTS
EXPLANATORY NOTE
This Registration Statement on Form S-8 (the “Registration Statement”) is filed by Celanese Corporation, a Delaware corporation (the “Company” or the “Registrant”), relating to shares of its Series A Common Stock, par value $0.0001 per share (the “Common Stock”), issuable to eligible employees, non-employee directors and service providers of the Company under the Celanese Corporation 2018 Global Incentive Plan dated as of April 23, 2018 (the “2018 Plan”), consisting of 2,500,000 shares of Common Stock. Additional shares of Common Stock covered by the 2018 Plan are being registered under other Registration Statements on Form S-8 of the Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information* |
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* | Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have heretofore been filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act, and pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein and shall be deemed to be a part hereof:
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(a) | the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017 filed with the Commission on February 9, 2018; |
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(b) | the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2018 filed with the SEC on April 17, 2018 and the Company's Current Reports on Form 8-K filed on February 20, 2018, March 20, 2018 and April 20, 2018; and |
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(c) | the description of the Company’s Series A Common Stock, par value $0.0001 per share, contained in the Company’s Form 8-A filed on January 18, 2005 (file number 001-32410) and any amendment or report updating such description. |
In addition, all documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicate that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information that the Company discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that it may from time to time furnish (but not file) to the Commission will be incorporated by reference into, or otherwise included in, this Registration Statement.
Any statement, including financial statements, contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or therein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock offered under the 2018 Plan has been passed upon for the Company by James R. Peacock III, Vice President, Deputy General Counsel and Corporate Secretary of the Company. As of the date of this Registration Statement, Mr. Peacock was employed by a subsidiary of the Company and the beneficial owner of approximately 13,442 shares of Common Stock.
Item 6. Indemnification of Directors and Officers
The Company is a Delaware corporation. Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Further subsections of DGCL Section 145 provide that:
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(1) | to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection therewith; |
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(2) | the indemnification and advancement of expenses provided for pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and |
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(3) | the corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145. |
Section 145 of the DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933. The Company’s Certificate of Incorporation and By-laws provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the Company will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another corporation or enterprise. the Company may, in its discretion, similarly indemnify its employees and agents.
The Company has established an Employee Indemnification Policy that provides that the Company and its subsidiaries will indemnify and hold harmless each director and officer against any taxes, interest, penalties, reasonable expenses (including reasonable counsel fees), judgments, settlement costs, fines, liabilities, damages, fees or other charges assessed against, suffered, or incurred by such indemnified employee in any action, arbitration, audit, hearing, investigation, litigation, suit or claim (whether criminal, civil, or administrative) as a direct or indirect result of such indemnified employee’s service (i) as an administrator, fiduciary, officer, trustee, custodian, agent, employee or other representative of any employee benefit plan sponsored by the Company or its subsidiaries or (ii) as a director, manager or officer of any of the Company’s subsidiaries, unless it is finally judicially determined that: (a) the act, omission, or failure to act of the indemnified employee was material to
the claim; and (b)(1) the act or omission was committed in bad faith or was the result of active and deliberate dishonesty, or (2) the indemnified employee actually received an improper personal benefit in money, property or services. The Employee Indemnification Policy also provides for reimbursement of reasonable expenses (including reasonable legal fees) incurred in the investigation of any such matter.
To the fullest extent permitted by the DGCL, the By-laws of the Company relieve its directors and officers, and directors and officers of affiliated subsidiaries, from expenses incurred in connection with a compelled action brought by or in the right of the Company if such director or officer acted in good faith and in a manner such director or officer reasonably believed to not be in or opposed to the Company’s best interests. However, the By-laws of the Company provide that a director or officer shall not be indemnified for any claim, issue or matter as to which such director or officer is adjudged liable to the Company unless, and only to the extent that, the Delaware Court of Chancery or the court in which such judgment is rendered determines that, despite the adjudication of liability but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses and costs as such court deems proper.
In addition, Section 102(b)(7) of the DGCL provides that a corporation is restricted from relieving its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors (i) for a breach of the duty of loyalty, (ii) for acts or omissions not in good faith, or which involve intentional misconduct or a knowing violation of law, (iii) for willful or negligent violations of certain provisions of the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends, or (iv) for any transactions from which the director derived an improper personal benefit.
The Company currently maintains an insurance policy which, within the limits and subject to the terms and conditions thereof, covers certain expenses and liabilities that may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Exhibit Number | | |
| Description |
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4.1 | | |
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4.1(a) | | |
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4.2 | | |
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4.3 | | |
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5.1* | | |
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23.1* | | |
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23.2* | | |
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23.3* | | |
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23.4* | | |
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24.1* | | |
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99.1 | |
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Item 9. Undertakings
1. The Company hereby undertakes:
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(a) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
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(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
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(b) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and |
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(c) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
2. The Company hereby further undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to provisions and arrangements that exist whereby the Company may indemnify such persons against liabilities arising under the Securities Act, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irving, State of Texas, on this 24th day of April, 2018.
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| CELANESE CORPORATION |
| (Registrant) |
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| By: | /s/ MARK C. ROHR |
| Name: | Mark C. Rohr |
| Title: | Chairman of the Board of Directors and Chief Executive Officer |
| | (Principal Executive Officer) |
POWER OF ATTORNEY
We, the undersigned officers and directors of Celanese Corporation, do hereby constitute and appoint Mark C. Rohr, Chief Executive Officer of the Company, and Scott A. Richardson, Chief Financial Officer of the Company, and, in each case, any of their respective successors at the Company (in functional position or otherwise) or designees, and each of them acting alone, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents may deem necessary or advisable to enable said Registrant to comply with the Securities Act and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this Registration Statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) and supplements hereto and we do hereby ratify and confirm all that said attorneys and agents shall do or cause to be done or have done or caused to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
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Signature | | Title | Date | |
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/s/ MARK C. ROHR | | Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer) | April 24, 2018 | |
Mark C. Rohr | | | |
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/s/ SCOTT A. RICHARDSON | | Senior Vice President and Chief Financial Officer (Principal Financial Officer) | April 24, 2018 | |
Scott A. Richardson | | | |
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/s/ BENITA M. CASEY | | Vice President - Finance, Controller and Chief Accounting Officer (Principal Accounting Officer) | April 24, 2018 | |
Benita M. Casey | | |
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/s/ JEAN S. BLACKWELL | | Director | April 24, 2018 | |
Jean S. Blackwell | | |
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/s/ WILLIAM M. BROWN | | Director | April 24, 2018 | |
William M. Brown | | |
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/s/ BENNIE W. FOWLER | | Director | April 24, 2018 | |
Bennie W. Fowler | | |
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/s/ EDWARD G. GALANTE | | Director | April 24, 2018 | |
Edward G. Galante | | |
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/s/ KATHRYN M. HILL | | Director | April 24, 2018 | |
Kathryn M. Hill | | |
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/s/ DAVID F. HOFFMEISTER | | Director | April 24, 2018 | |
David F. Hoffmeister | | |
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/s/ JAY V. IHLENFELD | | Director | April 24, 2018 | |
Jay V. Ihlenfeld | | |
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/s/ JOHN K. WULFF | | Director | April 24, 2018 | |
John K. Wulff | | |
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