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Exhibit 4.3
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AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
BY AND AMONG
BLACKSTONE CRYSTAL HOLDINGS
CAPITAL PARTNERS (CAYMAN) IV LTD.,
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.
DATED AS OF NOVEMBER 1, 2004
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TABLE OF CONTENTS
PAGE
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Article I.
INTRODUCTORY MATTERS.......................................1
1.1 Defined
Terms..............................................1
1.2
Construction...............................................4
Article II.
TRANSFERS..................................................5
2.1
Limitations on Transfer....................................5
2.2 Transfers
to BACI Affiliate Transferees....................6
2.3 Right of
First Refusal.....................................7
2.4 Tag-Along
Rights...........................................8
2.5 Drag-Along
Rights.........................................10
Article III. CORPORATE
GOVERNANCE MATTERS..............................11
3.1 Board of
Directors........................................11
3.2 Voting of
Shares; Action by the Company...................13
Article IV.
SUBSCRIPTION RIGHTS.......................................13
4.1
Subscription Right........................................13
4.2
Subscription Notices......................................14
Article V.
COVENANTS.................................................14
5.1 Books and
Records; Access.................................14
5.2 Periodic
Reporting........................................14
5.3
Confidentiality...........................................15
5.4
Indemnification...........................................16
5.5 Expenses
and Fees.........................................16
5.6 Use of
Shareholders' Names................................16
5.7
Redomiciliation...........................................17
Article VI.
MISCELLANEOUS.............................................17
6.1 Additional
Securities Subject to Agreement................17
6.2
Recapitalization, Exchange, Etc...........................17
6.3
Termination...............................................17
6.4
Notices...................................................17
6.5 Further
Assurances........................................18
6.6
Assignment................................................19
6.7 Amendment;
Waiver.........................................19
6.8 Third
Parties.............................................19
6.9 Governing
Law.............................................19
6.10
Jurisdiction..............................................19
6.11
MUTUAL WAIVER OF JURY TRIAL...............................20
6.12
Specific Performance......................................20
6.13
Entire Agreement..........................................20
6.14
Titles and Headings.......................................20
6.15
Severability..............................................20
6.16
Counterparts..............................................21
Exhibit A.........Restructuring
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AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT, dated as of
November 1, 2004, by and among Blackstone
Crystal Holdings Capital Partners
(Cayman) IV Ltd. (the "COMPANY"),
Blackstone Capital Partners (Cayman) Ltd. 1
("BCP 1"), Blackstone Capital Partners
(Cayman) Ltd. 2 ("BCP 2"), Blackstone
Capital Partners (Cayman) Ltd. 3 ("BCP 3"
and, together with BCP 1 and BCP 2 and
their respective successors and Permitted
Assigns (as hereinafter defined), the
"BLACKSTONE ENTITIES"), each an exempted
company incorporated under the laws of
the Cayman Islands, and BA Capital
Investors Sidecar Fund, L.P., a Cayman
Islands limited partnership (together with
its successors and Permitted Assigns,
"BACI"). Each of the Blackstone Entities
and BACI and their respective
successors and Permitted Assigns are
sometimes referred to individually as a
"SHAREHOLDER" and together as the
"SHAREHOLDERS."
BACKGROUND:
WHEREAS, in connection with the consummation of the voluntary
public takeover offer by a subsidiary of
the Company for all of the outstanding
registered ordinary shares of Celanese AG
(the "OFFER"), the Blackstone Entities
and BACI acquired Ordinary Shares, par
value $0.01 per share, of the Company
(the "ORDINARY SHARES"),
WHEREAS, the Blackstone Entities and BACI entered into the
Shareholders' Agreement, dated as of April
6, 2004 (the "ORIGINAL AGREEMENT") to
provide for certain matters relating to
their respective holdings of Ordinary
Shares and the governance of the
Company,
WHEREAS, in accordance with Section 6.7 thereof, BCP 1, BCP 2,
BCP 3 and BACI wish to amend and restate
the Original Agreement in its entirety,
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
INTRODUCTORY MATTERS
1.1 DEFINED TERMS. In addition to the terms defined elsewhere
herein, the following terms have the
following meanings when used herein with
initial capital letters:
"AFFILIATE" means, with respect to any Person, (i) any Person
that directly or indirectly controls, is controlled by or is
under
common control with, such Person or (ii) any director, officer,
member,
partner (including limited partners) or employee of such Person or
any
Person specified in clause (i) above; PROVIDED that officers,
directors
or employees of the Company will be deemed not to be Affiliates of
the
Shareholders for purposes hereof solely by reason of being
officers,
directors or employees of the Company.
"AGREEMENT" means this Amended and Restated Shareholders'
Agreement, as the same may be amended, supplemented, restated
or
otherwise modified from time to time in accordance with the
terms
hereof.
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"ASSUMPTION AGREEMENT" means a writing reasonably satisfactory
in form and substance to the Blackstone Entities whereby a BACI
Affiliate Transferee becomes a party to, and agrees to be bound to
the
same extent as its transferor, by the terms of this Agreement.
"BACI" has the meaning set forth in the preamble.
"BACI AFFILIATE TRANSFEREE" has the meaning set forth in
Section 2.2.
"BACI PERMITTED ASSIGN AGREEMENT" means an agreement
reasonably satisfactory in form and substance to the Blackstone
Entities whereby such Transferee agrees that it shall be bound by
all
of the provisions of this Agreement as if it were BACI, but shall
not
be entitled to the benefits of Article III hereof.
"BCP 1" has the meaning set forth in the preamble.
"BCP 2" has the meaning set forth in the preamble.
"BCP 3" has the meaning set forth in the preamble.
"BLACKSTONE ENTITIES" has the meaning set forth in the
preamble.
"BLACKSTONE INTERVENING ENTITY" means BCP 1, BCP 2, BCP 3 and
any other Person created by Blackstone Capital Partners (Cayman)
IV
L.P., Blackstone Capital Partners (Cayman) IV-A L.P., Blackstone
Family
Investment Partnership (Cayman) IV-A L.P. or Blackstone
Chemical
Coinvest Partners Cayman L.P. (collectively, the "Blackstone
Funds"),
but excluding the Blackstone Funds themselves, formed for the
purpose
of making the investment, directly or indirectly, in the
Company.
"BLACKSTONE REPRESENTATIVE" means the Blackstone Entity
designated from time to time by all of the Blackstone Entities to
serve
as the representative of the Blackstone Entities for certain
purposes
hereunder.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means a day other than a Saturday, Sunday,
federal or New York State holiday or other day on which
commercial
banks in New York City are authorized or required by law to
close.
"COMPANY" has the meaning set forth in the preamble.
"DIRECTOR" means any member of the Board.
"DRAG-ALONG BUYER" has the meaning set forth in Section
2.5(a).
"DRAG-ALONG NOTICE" has the meaning set forth in Section
2.5(b).
"DRAG-ALONG SHAREHOLDERS" shall have the meaning as set forth
in Section 2.5(a).
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
the
same may be amended from time to time.
"HEDGE COST REIMBURSEMENT AGREEMENT" means the Hedge Cost
Reimbursement Agreement, dated as of April 5, 2004, among the
parties
hereto and Blackstone Management Associates (Cayman) IV L.P.,] as
such
agreement
may be amended, supplemented or otherwise modified from time
to time.
"INITIAL PUBLIC OFFERING" means the closing of the first sale
of common equity or equivalent securities of the Company to the
public
pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or
successor
form) filed under the Securities Act.
"INITIAL SHARE HOLDING PERIOD" has the meaning set forth in
Section 2.1(a).
"MAJORITY SHAREHOLDERS" has the meaning set forth in Section
2.5(a).
"OFFER" has the meaning set forth in the preamble.
"OFFER NOTICE" has the meaning set forth in Section 2.3(a).
"OFFER PERIOD" has the meaning set forth in Section 2.3(a).
"ORDINARY SHARES" has the meaning set forth in the background
section.
"PERMITTED ASSIGNS" means (i) with respect to any Blackstone
Entity, a Transferee of Ordinary Shares of such Blackstone Entity
that
agrees to become party to, and to be bound to the same extent as
its
transferor by the terms of, this Agreement and (ii) with respect
to
BACI, a BACI Affiliate Transferee or a Transferee of Ordinary
Shares of
BACI that executes and delivers to the Company and each
Blackstone
Entity a BACI Permitted Assign Agreement.
"PERSON" means any individual, corporation, limited liability
company, partnership, trust, joint stock company, business
trust,
unincorporated association, joint venture, governmental authority
or
other legal entity of any nature whatsoever.
"PREFERRED SHARES" means the preferred shares, par value $0.01
per share, of the Company.
"PROPOSED SALE" has the meaning set forth in Section 2.4(a).
"PROPOSED TRANSFEREE" has the meaning set forth in Section
2.4(a).
"PUBLIC OFFERING" means a sale of common equity or equivalent
securities of the Company to the public pursuant to an
effective
registration statement (other than a registration statement on Form
S-4
or S-8 or any similar or successor form) filed under the
Securities
Act.
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"REDOMICILIATION" has the meaning set forth in Section 5.7.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the date hereof among the Company and the
Shareholders, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"RELATED PERSONS" has the meaning set forth in Section 5.4.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as the same
may
be amended from time to time.
"SHARE EQUIVALENTS" has the meaning set forth in Section 4.1.
"SHAREHOLDER" or "SHAREHOLDERS" has the meaning set forth in
the preamble.
"SUBSCRIPTION AGREEMENT" means the Subscription Agreement
dated April 5, 2004 among the Company and the Shareholders, as
such
agreement may be amended, supplemented or otherwise modified from
time
to time.
"SUBSCRIPTION NOTICE" has the meaning set forth in Section
4.2.
"SUBSCRIPTION OFFER PERIOD" has the meaning set forth in
Section 4.2.
"SUBSCRIPTION RIGHT PRO RATA SHARE" has the meaning set forth
in Section 4.1.
"TAG-ALONG
NOTICE" has the meaning set forth in Section
2.4(b).
"TAGGING SHAREHOLDER" has the meaning set forth in Section
2.4(a).
"TENDER OFFER CLOSING" means the closing of the first
acquisition of registered ordinary shares of Celanese AG by BCP
Crystal
Acquisition GmbH & Co. KG pursuant to its voluntary public
takeover
offer published February 2, 2004.
"TRANSFER" means a transfer, sale, assignment, pledge,
hypothecation or other disposition, whether directly or
indirectly
pursuant to the creation of a derivative security, the grant of
an
option or other right, the imposition of a restriction on
disposition
or voting or transfer by operation of law. When used as a verb,
"Transfer" shall have the correlative meaning. In addition,
"Transferred" and "Transferee" shall have the correlative
meanings.
1.2 CONSTRUCTION. (a) The language used in this Agreement will
be deemed to be the language chosen by the
parties to express their mutual
intent, and no rule of strict construction
will be applied against any party.
Unless the context otherwise requires: (i)
"OR" is disjunctive but not
exclusive, (ii) words in the singular
include the plural, and in the plural
include the singular, and (iii) the words
"HEREOF", "HEREIN", and "HEREUNDER"
and words of similar import when used in
this Agreement refer to this Agreement
as a whole and not to any particular
provision of this Agreement, and Section
references are to this Agreement unless
otherwise specified.
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ARTICLE II. TRANSFERS
2.1 LIMITATIONS ON TRANSFER. Without the prior written consent
of the Blackstone Representative, BACI may
not Transfer any Ordinary Shares
prior to the earlier of (x) the fifth (5th)
anniversary of the date hereof and
(y) the six (6) month anniversary of the
Initial Public Offering (or such
shorter period as the underwriters for such
Initial Public Offering shall
require of either the Blackstone Entities
or BACI) (the "INITIAL SHARE HOLDING
PERIOD") other than (1) to a BACI Affiliate
Transferee in accordance with the
provisions of Section 2.2, (2) to one or
more Blackstone Entities pursuant to
Section 2.3, (3) as a Tagging Shareholder
pursuant to Section 2.4, (4) as a
Drag-Along Shareholder pursuant to Section
2.5 or (5) pursuant to the rights set
forth in the Registration Rights Agreement.
Without limiting BACI's rights to
transfer to a BACI Affiliate Transferee
pursuant to clause (1) of the preceding
sentence, in the event of any proposed
Transfer by BACI of all of the Ordinary
Shares held by BACI to a Transferee that is
an institutional investor of
national reputation and that executes a
BACI Permitted Assign Agreement, which
proposed Transfer is subject to the rights
set forth in Section 2.3 below, such
consent of the Blackstone Representative
shall not be unreasonably withheld or
delayed. After the Initial Share Holding
Period, BACI may Transfer its Ordinary
Shares only in accordance with, and subject
to the applicable provisions of,
this Article II or pursuant to the rights
set forth in the Registration Rights
Agreement. Any Transferee of BACI prior to
the six (6) month anniversary of the
Initial Public Offering (or such shorter
period as the underwriters for such
Initial Public Offering shall require of
either the Blackstone Entities or BACI)
must qualify as a BACI Permitted
Assign.
(b) In the event of any purported Transfer by BACI of any
Ordinary Shares in violation of the
provisions of this Agreement, such purported
Transfer will be void and of no effect and
the Company will not give effect to
such Transfer.
(c) Each certificate representing Ordinary Shares held by any
Shareholder will bear a legend
substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
SHAREHOLDERS' AGREEMENT AMONG Blackstone Crystal Holdings
Capital
Partners (Cayman) IV Ltd. AND THE SHAREHOLDERS PARTY THERETO, A
COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. THE
SHAREHOLDERS'
AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN PROVISIONS RELATING
TO
THE VOTING AND TRANSFER OF THE SHARES SUBJECT TO THE AGREEMENT.
NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY, DIRECTLY
OR
INDIRECTLY, BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SUCH
SHAREHOLDERS' AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE
OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS
OF
SUCH SHAREHOLDERS' AGREEMENT.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
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TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN
REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
This legend will be removed by the Company,
with respect to any certificate
representing Ordinary Shares, by the
delivery of substitute certificates without
such legend in the event of (i) a Transfer
permitted or not prohibited by this
Agreement and in which the Transferee is
not required to, pursuant to this
Article II, enter into an Assumption
Agreement or a BACI Permitted Assign
Agreement or (ii) the termination of this
Agreement pursuant to the terms
hereof, PROVIDED, HOWEVER, that the second
paragraph of such legend will only be
removed if at such time it is no longer
required for purposes of applicable
securities laws.
(d) Prior to the earlier of (i) the Initial Public Offering
and (ii) the date on which BA Capital
Investors Sidecar Fund, L.P., together
with any BACI Affiliate Transferees, shall
no longer be entitled to designate a
Director pursuant to Section 3.1, no
Blackstone Entity may Transfer Ordinary
Shares (other than in connection with a
drag-along of all of BACI's Ordinary
Shares pursuant to Section 2.5) if, as a
result of such Transfer, the Blackstone
Entities would own, in the aggregate, less
than a majority of the outstanding
Ordinary Shares, unless such transferee
agrees in writing to be bound by such
Blackstone Entity's obligations under
Section 3.2 with respect to such
transferred Ordinary Shares, to the same
extent applicable to such Blackstone
Entity.
(e) Any Transfer by a Shareholder permitted under this
Agreement shall be effective only upon
receipt by the Company of information
reasonably satisfactory to it,
demonstrating that such Transfer is exempt from
or not subject to the provisions of Section
5 of the Securities Act and any
other applicable securities laws (for such
purpose, an opinion of Kirkland &
Ellis LLP, or other counsel reasonably
acceptable to the Company, to that effect
shall constitute such reasonably
satisfactory information), provided that no
such Transfer shall be permitted, except as
permitted under the Registration
Rights Agreement, if such Transfer would
require the Company to register a class
of equity securities under Section 12 of
the Exchange Act under circumstances
where the Company does not then have
securities of any class registered under
Section 12 of the Exchange Act and such
Transfer would cause such registration
to be required.
2.2 TRANSFERS TO BACI AFFILIATE TRANSFEREES. During or after
the Initial Share Holding Period, BACI may
Transfer Ordinary Shares, subject to
compliance with the other provisions of
this Agreement, to an Affiliate of Bank
of America Corporation who duly executes
and delivers to the Company and each
Blackstone Entity an Assumption Agreement
(a "BACI AFFILIATE TRANSFEREE");
PROVIDED, HOWEVER, that in the event a
transaction or event is contemplated in
which any BACI Affiliate Transferee to
which Ordinary Shares are Transferred
will cease to qualify as a BACI Affiliate
Transferee, other than in connection
with the BONA FIDE sale or other
disposition by Bank of America Corporation, or
any of its Affiliates, of a business unit
that includes such BACI Affiliate
Transferee, such BACI Affiliate Transferee
to which Ordinary Shares are
Transferred shall, and BACI shall cause
such BACI Affiliate Transferee to: (i)
promptly notify the Company of the pending
occurrence of such transaction or
event; and (ii) prior to the time such BACI
Affiliate Transferee ceases to be a
BACI Affiliate Transferee, Transfer back to
BA Capital Investors Sidecar Fund,
L.P. (or to another BACI Affiliate
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Transferee) any Ordinary Shares it owns and
such Transferee will execute and
deliver an Assumption Agreement with
respect thereto.
2.3 RIGHT OF FIRST REFUSAL. If at any time (i) during the
Initial Share Holding Period and subject to
the prior written consent of the
Blackstone Representative as provided in
Section 2.1, or (ii) before the six (6)
month anniversary of the Initial Public
Offering (or such shorter period as the
underwriters for such Initial Public
Offering shall require of either the
Blackstone Entities or BACI), BACI proposes
to Transfer, all or any portion of
the Ordinary Shares held by it (other than
(1) to a BACI Affiliate Transferee in
accordance with Section 2.2, (2) as a
Tagging Shareholder pursuant to Section
2.4, (3) as a Drag-Along Shareholder
pursuant to Section 2.5 or (4) pursuant to
the rights set forth in the Registration
Rights Agreement) and BACI has received
a bona fide arm's length offer for the
Ordinary Shares subject to such Transfer,
BACI shall deliver to the Blackstone
Representative a written notice (the "OFFER
NOTICE") of such proposed transaction,
which shall identify the proposed
Transferee and set forth the proposed terms
of such Transfer, including the
number of Ordinary Shares proposed to be
Transferred and the purchase price
therefor. The Offer Notice shall contain an
irrevocable offer to sell to the
Blackstone Entities the Ordinary Shares
proposed to be Transferred at a price
equal or equivalent (as determined in the
manner set forth below) to the price
contained in, and otherwise on the same
terms and conditions of, the Offer
Notice. The Blackstone Entities shall have
fifteen (15) Business Days from the
date the Offer Notice is received (the
"OFFER PERIOD") to determine whether one
or more of such Blackstone Entities, or one
or more of their designees, shall
exercise the right to purchase all (but not
less than all) of the Ordinary
Shares subject to the Offer Notice on the
terms set forth in such Offer Notice,
PROVIDED, HOWEVER, that if the proposed
transaction includes any consideration
other than cash, then, at the sole option
of any such Blackstone Entity or
designee, the relevant price shall be the
equivalent cash price, determined (x)
in the case of consideration consisting of
securities listed or quoted on a
national securities exchange or the Nasdaq
National Market System, by the
average daily closing sales price, as
reported by Bloomberg L.P. (or if not
reported by Bloomberg L.P., as reported by
a reporting service of similar
national reputation), of such securities on
their principal trading market for
the ten consecutive trading days preceding
the date of receipt of the Offer
Notice and (y) in the case of any other
non-cash consideration, by the Board,
acting reasonably and in good faith. If a
Blackstone Entity does not respond to
the Offer Notice within the Offer Period,
then such Blackstone Entity will be
deemed to have elected not to exercise the
right of first refusal specified in
the Offer Notice.
If one or more of the Blackstone Entities and/or their
respective designees shall have agreed to
purchase Ordinary Shares pursuant to
this Section 2.3, the applicable Blackstone
Entities and/or their designees
shall consummate such purchase by
delivering, against receipt of certificates or
other instruments representing the Ordinary
Shares being purchased,
appropriately endorsed by BACI, the
purchase price for such Ordinary Shares.
Such closing date will be the later of (i)
fifteen (15) Business Days after the
expiration of the Offer Period and (ii)
five (5) Business Days after receipt of
all governmental consents and approvals,
and the expiration of all governmental
waiting periods, required for such
Transfer. BACI shall give participating
Blackstone Entities and/or designees at
least five (5) Business Days written
notice of the closing date.
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(b) If none of the Blackstone Entities exercises its right of
first refusal under Section 2.3(a), then
BACI shall be permitted to Transfer the
Ordinary Shares subject to the Offer
Notice, no later than sixty (60) days after
the expiration of the Offer Period at a
price not less than the purchase price
per share set forth in the Offer Notice and
on other terms not materially less
favorable to BACI than those terms set
forth in the Offer Notice. If BACI does
not Transfer the Ordinary Shares in the
time period provided for in this Section
2.3(b), any Transfer by BACI of any such
shares after such period shall again be
subject to this Section 2.3.
2.4 TAG-ALONG RIGHTS. Until the six (6) month anniversary of
the Initial Public Offering (or such
shorter period as the underwriters for such
Initial Public Offering shall require of
either the Blackstone Entities or
BACI), if any Blackstone Entity (a "SELLING
SHAREHOLDER") proposes to Transfer
Ordinary Shares, which Transfer or series
of related Transfers relates to more
than 5% of the then-outstanding Ordinary
Shares (other than (i) to an Affiliate
that qualifies as a Permitted Assign or
(ii) pursuant to the exercise of rights
set forth in Section 2.5 or in the
Registration Rights Agreement) (any such
transaction, a "PROPOSED SALE"), then each
of the other Shareholders that is not
a Blackstone Entity will have the right to
require the proposed Transferee (a
"PROPOSED TRANSFEREE") to purchase from any
such other Shareholder who exercises
its rights pursuant to this Section 2.4 (a
"TAGGING SHAREHOLDER") up to the
number of Ordinary Shares equal to the
product (rounded up to the nearest whole
number) of (x) the quotient determined by
DIVIDING (A) the aggregate number of
Ordinary Shares owned by such Tagging
Shareholder by (B) the aggregate number of
Ordinary Shares owned by the Selling
Shareholder(s) and all Tagging Shareholders
and (y) the total number of Ordinary Shares
proposed to be directly or
indirectly Transferred to the Proposed
Transferee, at the same price per
Ordinary Share and upon the same terms and
conditions (including, without
limitation, time of payment, form of
consideration and adjustments to purchase
price) as the Selling Shareholder; PROVIDED
that in order to be entitled to
exercise its right to sell Ordinary Shares
to the Proposed Transferee pursuant
to this Section 2.4, each Tagging
Shareholder shall agree to make to the
Proposed Transferee the same
representations, warranties, covenants, indemnities
and agreements as the Selling Shareholder
agrees to make in connection with the
Proposed Sale and shall agree to the same
conditions to the Proposed Sale as the
Selling Shareholder agrees (except that, in
the case of representations,
warranties, conditions, covenants,
indemnities and agreements pertaining
specifically to the Selling Shareholder,
each Tagging Shareholder shall make
comparable representations, warranties,
covenants, indemnities and agreements
and shall agree to comparable conditions,
in each case to the extent applicable
and pertaining specifically to itself and
only to itself); provided that all
representations, warranties, covenants,
indemnities and agreements (other than
those
