Common use of Acquisition of Additional Voting Securities Clause in Contracts

Acquisition of Additional Voting Securities. (a) Until the second anniversary of the date hereof, except as otherwise provided in this Section 4.1, each of the Investor Stockholders covenants and agrees with the Company that it shall not, and shall cause each of its controlled Affiliates not to, directly or indirectly, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, the beneficial ownership of any additional Voting Securities if following such proposed acquisition (an "Acquisition") the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% of the voting power represented by the Company's Voting Securities (the "Permitted Ownership Percentage") on an as converted and fully diluted basis (except (i) by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Securities of the Company generally, (ii) Equity Securities acquired from the Company (including upon conversion of shares of Series A Preferred Stock) and (iii) pursuant to this Agreement (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition Restrictions shall not apply to any Acquisition that is approved by a majority of the Directors, excluding for the purposes of such approval any Investor Directors. (b) Upon a repurchase or redemption of Equity Securities by the Company that, by reducing the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentage. (c) Subject to Section 4.1(b) at any time the Investor Stockholders or any of their Affiliates become aware that the Investor Stockholders and their Affiliates beneficially own in the aggregate more than the Permitted Ownership Percentage, then the Investor Stockholders shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders or any such Affiliate to incur liability under Section 16(b) of the Exchange Act), take all action necessary to reduce the amount of Equity Securities beneficially owned by them and their Affiliates to an amount not greater than the Permitted Ownership Percentage in effect at such time.

Acquisition of Additional Voting Securities. (a) Until During the second anniversary term of the date hereofthis Agreement, except as otherwise provided in this paragraph (b) below or Section 4.12.2 hereof, each of the Investor Stockholders TD covenants and agrees with the Company that it shall not, and shall cause each not permit any of its controlled Affiliates not to, directly or indirectly, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (including whether by way of merger merger, consolidation or consolidationotherwise), by joining a partnership, syndicate or other group Group or otherwise, the Beneficial Ownership of any additional Voting Securities, or take any other action as a shareholder or through the Class B Directors or otherwise, if such acquisition or action would result in TD Beneficially Owning Voting Securities representing more than 66 2/3% of the Total Voting Power (within the meaning “Ownership Cap”, except that with the approval of a majority of the Designated Independent Directors, the Board may authorize a repurchase of Common Stock by the Company as a result of which TD may Beneficially Own Voting Securities representing up to 70% of the Total Voting Power, in which case the “Ownership Cap”, for all purposes of this Agreement, shall mean the percentage of the Total Voting Power of Voting Securities Beneficially Owned by TD and its Affiliates following the completion of such share repurchase, provided that if following such increase in the Ownership Cap TD’s Ownership Percentage declines to 66 2/3% as a result of Transfers of Voting Securities by TD and its Affiliates, the “Ownership Cap” shall again be 66 2/3%). (b) Notwithstanding the foregoing, the acquisition (whether by merger, consolidation or otherwise) by TD or an Affiliate thereof of any Person that Beneficially Owns Voting Securities, or the acquisition of Voting Securities in connection with securing or collecting a debt previously contracted in good faith in the ordinary course of TD’s or such Affiliate’s banking or brokerage business, shall not constitute a violation of the Ownership Cap; provided that (i) the primary purpose of any such transaction is not to avoid the provisions of this Agreement, including the Ownership Cap, and (ii) that in the case of an acquisition of another Person, TD uses reasonable best efforts to negotiate terms in connection with the relevant acquisition agreement requiring such other Person to divest itself of sufficient Voting Securities it Beneficially Owns so that the Ownership Cap would not be exceeded pro forma for the acquisition, with such divestiture to be effected concurrently with, or as promptly as practicable following, the consummation of such acquisition (but in no event more than 90 days following such consummation, or such longer period as may be necessary so that neither TD nor any of its Affiliates incurs any liability under Section 13(d)(316(b) of the Exchange Act) or otherwiseand, to the extent such divestiture does not occur despite the use of such reasonable best efforts, the beneficial ownership successor or surviving Person to such transaction, if not TD or such Affiliate, expressly assumes all obligations of any additional Voting Securities if following TD or such proposed acquisition Affiliate, as the case may be, under this Agreement; and provided, further, that the provisions of paragraph (an "Acquisition"c) the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% of the voting power represented by the Company's Voting Securities (the "Permitted Ownership Percentage") on an as converted and fully diluted basis (except below are complied with. (i) by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Securities of the Company generally, (ii) Equity Securities acquired from the Company (including upon conversion of shares of Series A Preferred Stock) and (iii) pursuant to this Agreement (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition Restrictions shall not apply to any Acquisition that is approved by a majority of the Directors, excluding for the purposes of such approval any Investor Directors. (b) Upon a repurchase or redemption of Equity Securities by the Company that, by reducing the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentage. (c) Subject to Section 4.1(b) If at any time the Investor Stockholders TD or any of their its Affiliates become aware that the Investor Stockholders and their Affiliates beneficially own Beneficially Own in the aggregate Voting Securities representing more than the Permitted Ownership PercentageCap, then the Investor Stockholders TD shall, as soon as is reasonably practicable practicable, but in no event longer than 90 days after its Ownership Percentage first exceeds the Ownership Cap (but in no manner that would require the Investor Stockholders TD or any such Affiliate to incur liability under Section 16(b) of the Exchange Act) Transfer (in any manner permitted by Section 3.2(b), take all action necessary regardless of whether such Transfer occurs prior to or after the second anniversary of the Closing) a number of Voting Securities sufficient to reduce the amount of Equity Voting Securities beneficially owned Beneficially Owned by them it and their its Affiliates to an amount representing not greater than the Permitted Ownership Percentage Cap. (ii) Notwithstanding any other provision of this Agreement, in effect no event may TD or any of its Affiliates, directly or indirectly including through any agreement or arrangement, exercise any voting rights, during the term of this Agreement, in respect of any Voting Securities Beneficially Owned by TD and its Affiliates representing in excess of the Ownership Cap. (d) Any additional Voting Securities acquired and Beneficially Owned by TD or any of its Affiliates following the Closing shall be subject to the restrictions contained in this Agreement as fully as if such Voting Securities were acquired by TD at such timethe Closing pursuant to the Merger Agreement.

Acquisition of Additional Voting Securities. (a) Until During the second anniversary of the date hereof, except as otherwise provided in this Section 4.1Standstill Period, each of the Investor Stockholders covenants and Stockholder hereby agrees with the Company that it shall not, and shall cause each of its Affiliates (which solely for purposes of this sentence shall include only Affiliates of such Stockholder which are engaged in the business of private equity investing, and shall not, without limitation, include (i) any portfolio company (or its subsidiaries) owned or controlled Affiliates by such Stockholder or by any private equity investment vehicle that is an Affiliate of such Stockholder or (ii) any other Affiliate not engaged in the business of private equity investing, including any hedge fund, public equity investment vehicle, debt fund, real estate fund or similar entity, that would otherwise be considered an Affiliate of such Stockholder but with which such Stockholder does not act in concert with respect to the Company or its securities) not to, without the prior approval of the Company Board, directly or indirectly, (i) acquire, offer or propose to acquire or agree to acquire, acquire (whether by purchase, tender or exchange offer, through the an acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) Group, or otherwise), the beneficial ownership of any additional Voting Securities if following such of the Company or any of its Subsidiaries (or any warrants, options or other rights to purchase or acquire, or any securities convertible into, or exchangeable for, any Voting Securities of the Company or any of its Subsidiaries) (other than with respect to being deemed to be a Group with other Stockholders solely or as a result of an agreement, arrangement or understanding regarding the disposition of Registrable Securities); provided, however, that the foregoing restrictions shall not apply to any acquisition or proposed acquisition (each, an "“Acquisition"”) the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% beneficial ownership of any additional Voting Securities of the voting power represented by the Company's Voting Securities : (the "Permitted Ownership Percentage"x) on an as converted and fully diluted basis (except (i) which is by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Securities of the Company generally, generally or (iiy) which involves Equity Securities acquired from the Company; (ii) make any public announcement with respect to, or submit any proposal for, any merger, consolidation, sale of substantial assets or other business combination, tender offer or exchange offer, purchase of assets, dissolution, liquidation, restructuring, recapitalization or extraordinary transaction involving the Company (including upon conversion or any of shares of Series A Preferred Stock) and its Subsidiaries; (iii) pursuant make, or in any way participate in, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to this Agreement (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition Restrictions shall not apply to vote any Acquisition that is approved by a majority Voting Securities of the Directors, excluding for the purposes of such approval any Investor Directors. (b) Upon a repurchase or redemption of Equity Securities by the Company that, by reducing the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentage. (c) Subject to Section 4.1(b) at any time the Investor Stockholders or any of their Affiliates become aware that its Subsidiaries or seek to advise or influence any Person with respect to the Investor Stockholders and their Affiliates beneficially own in voting of any Voting Securities of the aggregate more than the Permitted Ownership Percentage, then the Investor Stockholders shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders Company or any of its Subsidiaries or initiate, propose or otherwise “solicit” (as such Affiliate to incur liability term is defined or used in Regulation 14A under Section 16(b) of the Exchange Act) stockholders of the Company for the approval of shareholder proposals whether made pursuant to Rule 14a-8 promulgated under the Exchange Act or otherwise, induce or attempt to induce any other person to initiate any such shareholder proposal, or otherwise communicate with the stockholders of the Company or others pursuant to the rules governing the solicitation of proxies; (iv) form, join or in any way participate in any Group (other than with respect to its Affiliates and other than with respect to other Stockholders) with respect to any of the Voting Securities of the Company; (v) otherwise act, either alone or in concert with others (including any Affiliate), to seek control of the Company, the Company Board or any of its Subsidiaries; (vi) execute any written consent as a stockholder with respect to the Voting Securities; (vii) seek, alone or in concert with others (including any Affiliate) (A) to call a meeting of the stockholders of the Company, (B) representation on the Company Board, or (C) the removal of any member of the Board; (viii) take all or cause others to take any action necessary inconsistent with the foregoing; (ix) disclose any intention, proposal, plan or arrangement with respect to reduce any of the amount foregoing; or (x) make any demand, request or proposal to amend, waive or terminate any provision of Equity Securities beneficially owned by them and their Affiliates to an amount not greater than the Permitted Ownership Percentage in effect at such timethis Section 5.1.

Acquisition of Additional Voting Securities. (a) Until Subject to subsection (b) of this Section 6.1, during the second anniversary of period commencing on the date hereofhereof and ending on the Termination Date, except as otherwise provided in this Section 4.1, each of the Investor Stockholders covenants and Enron hereby agrees with the Company that it shall not, and that it shall cause each of its controlled Affiliates not to (and each Designated Transferee also agrees, pursuant to the assumption contemplated by Section 3.2, not to), directly or indirectlywithout the prior approval of the Company Board (excluding, for purposes of such approval, the Enron Directors), (i) acquire, offer or propose to acquire or agree to acquire, acquire (whether by purchase, tender or exchange offer, through the an acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group Group, or otherwise), the beneficial ownership of any Voting Securities of the Company in excess of Voting Securities delivered at Closing (within or any warrants, options or other rights to purchase or acquire, or any securities convertible into, or exchangeable for, any Voting Securities of the meaning Company); (ii) make any public announcement with respect to, or submit any proposal for, any merger, consolidation, sale of Section 13(d)(3substantial assets (other than sales made in the ordinary course of business of Enron or its Subsidiaries) or other business combination or extraordinary transaction involving the Company; (iii) except in connection with the election of the Enron Directors and Enron Designees, make, or in any way participate in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any Voting Securities of the Company or otherwiseseek to advise or influence any Person (other than any Enron Affiliate or Designated Transferee) with respect to the voting of any Voting Securities of the Company; (iv) otherwise act, either alone or in concert with others, to seek control of the Company Board or (v) publicly disclose any intention, proposal, plan or arrangement with respect to any of the foregoing (collectively, the "Acquisition Restrictions"). The Acquisition Restrictions contained in clause (i) above shall not apply to any acquisition (each, an "Acquisition") of beneficial ownership of any additional Voting Securities if following such proposed acquisition (an "Acquisition") the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% of the voting power represented by the Company's Voting Securities : (the "Permitted Ownership Percentage"x) on an as converted and fully diluted basis (except (i) which is by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, basis to holders of Equity Securities of the Company generally, (iiy) that involves Equity Securities acquired from the Company (including in accordance with the provisions of the Stock Purchase Agreement or upon conversion of shares of Series A Preferred Stock) and any Class B Common Stock (iii) including any Class B Common Stock issued pursuant to this Agreement (a Purchase Contract) issued pursuant to the "Acquisition Restrictions"); providedStock Purchase Agreement, howeverexcept that in no event shall Enron, that the foregoing Acquisition Restrictions shall not apply to its Affiliates and any Acquisition that is approved by a majority Designated Transferee, together, acquire or hold direct ownership of more than 4.9% of the Directors, excluding for outstanding Voting Securities of the purposes Company or (z) from an Affiliate of such approval Enron. Nothing contained in this Section 6.1 shall be construed to limit or restrict any Investor Directorsaction taken in good faith by the Enron Directors or Designees in their capacities as directors of the Company Board or any other Applicable Board or by Enron or its Affiliates pursuant to Article II. (b) Upon The foregoing Acquisition Restrictions will not apply if: (i) a repurchase third party that is not an Affiliate of Enron or redemption a Designated Transferee (a "Third Party", which term shall include any Group, other than a Group that includes Enron, any of its Affiliates or any Designated Transferee as a member) commences or publicly announces its intention to commence a bona fide tender or exchange offer for more than 15% of the outstanding Voting Securities of the Company and the Company Board does not recommend against the tender or exchange offer within 10 Business Days after the commencement thereof (which, in the case of an exchange offer, shall be deemed to be the effective date of the registration statement relating to the securities offered in such exchange offer or, if permitted under the Exchange Act, such earlier date selected by the offeror for commencement of the exchange offer) or such longer period as shall then be permitted under SEC rules; (ii) a Third Party acquires beneficial ownership of 15% or more of the Company's outstanding Voting Securities; (iii) a Third Party makes a bona fide proposal to acquire assets of the Company that the Company Board is actively negotiating and the consummation of which would require approval of the shareholders of the Company pursuant to the Oregon Business Corporation Act; (iv) a Third Party makes a bona fide proposal to enter into any acquisition or other business combination transaction with the Company that the Company Board is actively negotiating; (v) the Company enters into (or publicly announces its intention to do so) a definitive agreement, or an agreement contemplating a definitive agreement, for any of the foregoing transactions described in clauses (i) to (iv) above; (vi) to any Transfer of Equity Securities by between or among Enron, its Affiliates and any Designated Transferee or Transferees; or (vii) the Company that, by reducing the number is in material breach of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentageits obligations under this Agreement. (c) Subject to Section 4.1(b) at any time the Investor Stockholders or any of their Affiliates become aware that the Investor Stockholders and their Affiliates beneficially own in the aggregate more than the Permitted Ownership Percentage, then the Investor Stockholders shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders or any such Affiliate to incur liability under Section 16(b) of the Exchange Act), take all action necessary to reduce the amount of Equity Securities beneficially owned by them and their Affiliates to an amount not greater than the Permitted Ownership Percentage in effect at such time.

Acquisition of Additional Voting Securities. (a) Until the second anniversary of the date hereof, except Except as otherwise provided in paragraphs (b) and (c) of this Section 4.12.1 and Section 2.2(c) below, each of the Investor Stockholders for a period ending January 7, 2010, Glencore covenants and agrees with the Company that it shall not, and shall cause each of its controlled Affiliates not to, directly or indirectly, including through any Affiliate, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) Group or otherwise, the beneficial ownership Beneficial Ownership of any additional Voting Securities if following such proposed acquisition (an "Acquisition") the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% of the voting power represented by the Company's Voting Securities (excluding any acquisition through conversions of Series A Preferred Stock as permitted by the "Permitted Ownership Percentage") on an as converted and fully diluted basis (except (i) Certificate of Designation or by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Company Common Stock generally) that would cause its Beneficial Ownership of Voting Securities (including any Voting Securities previously acquired through conversions of Series A Preferred Stock as permitted by the Certificate of Designation or by way of stock dividends, stock reclassifications or other distributions or offerings made available to holders of Company Common Stock generally) to exceed the applicable Permitted Ownership Percentage (the “Acquisition Restrictions”). Notwithstanding the foregoing provisions of this Section 2.1(a), if during the period from the Closing Date to April 7, 2009, the Company shall make a widely-distributed public offering of Company Common Stock for cash and shall determine not to afford to Glencore and its Affiliates the opportunity to purchase shares in such offering in an amount which would maintain Glencore’s economic interest in the Company to a level which is at least equal to forty-seven percent (47%) of the entire economic interests in the Company, then Glencore may purchase in the open market such number of additional shares of Company Common Stock as shall be sufficient to cause its aggregate economic interest in the Company to be equal to forty-seven percent (47%); provided that any such additional shares of Company Common Stock so acquired shall, for the period ending April 7, 2009, be subject to the provisions of Section 2.1(c); and provided further, that any such shares so acquired shall be included in the shares to be taken into account in determining Glencore’s compliance with the Permitted Ownership Percentage requirement in respect of the period from April 8, 2009 to January 7, 2010. As used in this section, the percentage of Glencore and its Affiliates “economic interests” will be calculated as the total number of shares of Company Common Stock, plus the total number of shares of Company Common Stock issuable upon conversion of then outstanding Series A Preferred Stock, in each case held by them, compared to the total number of outstanding shares of Company Common Stock plus the shares of Company Common Stock issuable upon conversion of the then outstanding Series A Preferred Shares. (b) The foregoing Acquisition Restrictions will not apply if (i) a third party who is not an Affiliate of Glencore (a “Third Party,” which term shall include any Group, other than a Group which includes Glencore or any of its Affiliates as a member), commences a bona fide tender or exchange offer for more than 50% of the outstanding Company Common Stock and (ii) the Board does not both (x) recommend against the tender or exchange offer within ten Business Days after the commencement thereof or such longer or shorter period as shall then be permitted under the Commission’s rules and (y) within ten Business Days after the commencement thereof adopt (if the Company does not then have one in effect) a Qualifying Rights Plan and no order restraining, enjoining or otherwise prohibiting adoption or requiring repeal of such Qualifying Rights Plan is issued and is not immediately stayed pending appeal and such Qualifying Rights Plan is not otherwise repealed (the occurrence of both (i) and (ii), an “Acquisition Restrictions Termination Event”); provided that if the Acquisition Restrictions terminate as a result an Acquisition Restrictions Termination Event under this Section 2.1(b), Glencore may only acquire shares of Voting Securities pursuant to (1) a tender or exchange offer in which Glencore offers to acquire any and all of the outstanding Company Common Stock not Beneficially Owned by Glencore which if consummated shall be followed by a merger in which any shares of Company Common Stock not tendered or exchanged would be exchanged for the same consideration per share as offered in such tender or exchange offer, except that Glencore will not be obligated to consummate any such merger if holder(s) holding in the aggregate more than one and one half percent (1.5%) of the outstanding Equity Securities of the Company generallydemand (and do not withdraw or otherwise lose) appraisal rights under Section 262 of the Delaware General Corporation Law in connection therewith, or (ii2) Equity Securities acquired from a Business Combination Proposal for the Company so long as (including upon conversion of shares of Series A Preferred StockA) such Business Combination Proposal is made in writing delivered to the Independent Directors and (iiiB) pursuant to this Agreement (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition Restrictions shall not apply Glencore and its representatives keep confidential and refrain from disclosing to any Acquisition other Person (other than its advisors) the fact that they have made any such Business Combination Proposal or any of the terms thereof until such Business Combination Proposal is approved by at least a majority of the Independent Directors, excluding for except as may be required by law. If the purposes foregoing tender or exchange offer by a Third Party referred to in this Section 2.1(b) shall have been terminated, consummated or expired prior to the time that Glencore makes or announces its intention to make, such a bona fide tender or exchange offer or a bona fide Business Combination Proposal, then the Acquisition Restrictions shall be reinstated at the Permitted Ownership Percentage in effect prior to the termination of such approval the Acquisition Restrictions. Subject to the immediately preceding sentence, if an order is issued restraining, enjoining or otherwise prohibiting adoption or requiring repeal of any Investor Directors. (b) Upon a repurchase or redemption of Equity Securities Qualifying Rights Plan adopted by the Company thatand is not immediately stayed pending appeal or such Qualifying Rights Plan is otherwise repealed, by reducing the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates Acquisition Restrictions Termination Event shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentagehave occurred. (c) Subject to Section 4.1(b) If at any time the Investor Stockholders Glencore or any of their its Affiliates become aware that the Investor Stockholders and their Affiliates beneficially own in the aggregate more than the Permitted Ownership Percentage, then the Investor Stockholders shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders Glencore or any such Affiliate of its Affiliates has acquired Voting Securities that causes Glencore to incur liability under Section 16(b) of the Exchange Act), take all action necessary to reduce the amount of Equity Securities beneficially owned by them and their Affiliates to an amount not greater Beneficially Own more than the Permitted Ownership Percentage in effect violation of this Agreement, then Glencore shall promptly notify the Company in writing of such acquisition and, while its total Beneficial Ownership of Voting Securities exceeds the then applicable Permitted Ownership Percentage, Glencore and its Affiliates may not exercise voting rights in respect of a number of Voting Securities equal to the Voting Securities so acquired unless otherwise authorized by the Board, in which case such Voting Securities shall be voted as directed by the Board. (d) Any additional Equity Securities acquired by Glencore or any of its Affiliates or any directors or senior policy-making officers of Glencore International AG and Glencore following the Closing shall be subject to the restrictions contained in this Agreement as fully as if such Equity Securities were acquired by Glencore pursuant to the Purchase, it being understood that any Company Common Stock acquired by any Person who at the time of such timeacquisition was an officer, director or employee of the Company or any of its Subsidiaries pursuant to options granted or any other issuances of shares of Company Common Stock under any Company benefit plan shall not be deemed to be subject to this Agreement.

Acquisition of Additional Voting Securities. (a) Until Subject to Section 7.1(b), during the second anniversary of Standstill Period, the date hereof, except as otherwise provided in this Section 4.1, each of the Investor Stockholders covenants and Equity Purchaser hereby agrees with the Company that it shall not, and that it shall cause each of its controlled Affiliates (including, without limitation, KKR) not to, without the prior approval of the Board of Directors of the Company (excluding, for purposes of such approval, the KKR Representative), directly or indirectly, (i) acquire, offer or propose to acquire or agree to acquire, acquire (whether by purchase, tender or exchange offer, through the an acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) Group, or otherwise), the beneficial ownership of any additional Voting Securities if following such of the Company or any of its Subsidiaries (or any warrants, options or other rights to purchase or acquire, or any securities convertible into, or exchangeable for, any Voting Securities of the Company or any of its Subsidiaries or any other Equity Securities of the Company or any of its Subsidiaries); provided, however, that the foregoing restrictions shall not apply to any acquisition or proposed acquisition (each, an "AcquisitionACQUISITION") of beneficial ownership of any additional Voting Securities of the Investor Stockholders Company: (x) if, after giving effect to such Acquisition, the aggregate number of Voting Securities of the Company beneficially owned on a Fully Diluted Basis by the Equity Purchaser (together with their Affiliates its Affiliates) would beneficially own, in the aggregate, in excess of 20not exceed 25% of the voting power represented by total Voting Securities of the Company's Voting Securities , (the "Permitted Ownership Percentage"y) on an as converted and fully diluted basis (except (i) which is by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Securities of the Company generally, generally or (iiz) involves Equity Securities acquired from the Company (including upon conversion the Warrant Shares) or otherwise in accordance with the provisions of shares the Agreement and the other Transaction Agreements; (ii) make any public announcement with respect to, or submit any proposal for, any merger, consolidation, sale of Series A Preferred Stock) and substantial assets or other business combination or extraordinary transaction involving the Company or any of its Subsidiaries; (iii) pursuant make, or in any way participate in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to this Agreement (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition Restrictions shall not apply to vote any Acquisition that is approved by a majority Voting Securities of the Directors, excluding for the purposes of such approval any Investor Directors. (b) Upon a repurchase or redemption of Equity Securities by the Company that, by reducing the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentage. (c) Subject to Section 4.1(b) at any time the Investor Stockholders or any of their Affiliates become aware that its Subsidiaries or seek to advise or influence any Person with respect to the Investor Stockholders and their Affiliates beneficially own in voting of any Voting Securities of the aggregate more than the Permitted Ownership Percentage, then the Investor Stockholders shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders Company or any such Affiliate of its Subsidiaries, (iv) form, join or in any way participate in any Group (other than with respect to incur liability under Section 16(bits Affiliates) with respect to any of the Exchange Act)Voting Securities of the Company; (v) otherwise act, take all action necessary either alone or in concert with others, to reduce seek control of the amount Company or any of Equity Securities beneficially owned by them and their Affiliates its Subsidiaries; (vi) disclose any intention, proposal, plan or arrangement with respect to an amount not greater than any of the Permitted Ownership Percentage in effect at such time.foregoing; or

Acquisition of Additional Voting Securities. (a) Until the second anniversary of the date hereof, except Except as otherwise provided in paragraphs (b) and (c) of this Section 4.12.1 and Section 2.2(c) below, each of the Investor Stockholders for a period ending January 7, 2010, Glencore covenants and agrees with the Company that it shall not, and shall cause each of its controlled Affiliates not to, directly or indirectly, including through any Affiliate, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) Group or otherwise, the beneficial ownership Beneficial Ownership of any additional Voting Securities if following such proposed acquisition (an "Acquisition") the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% of the voting power represented by the Company's Voting Securities (excluding any acquisition through conversions of Series A Preferred Stock as permitted by the "Permitted Ownership Percentage") on an as converted and fully diluted basis (except (i) Certificate of Designation or by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Company Common Stock generally) that would cause its Beneficial Ownership of Voting Securities of the Company generally, (ii) Equity Securities acquired from the Company (including upon conversion of shares any Voting Securities previously acquired through conversions of Series A Preferred Stock) and (iii) pursuant to this Agreement (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition Restrictions shall not apply to any Acquisition that is approved by a majority of the Directors, excluding for the purposes of such approval any Investor Directors. (b) Upon a repurchase or redemption of Equity Securities Stock as permitted by the Certificate of Designation or by way of stock dividends, stock reclassifications or other distributions or offerings made available to holders of Company that, by reducing Common Stock generally) to exceed the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership PercentagePercentage (the “Acquisition Restrictions”). Notwithstanding the foregoing provisions of this Section 2.1(a), none if during the period from the Closing Date to April 7, 2009, the Company shall make a widely-distributed public offering of Company Common Stock for cash and shall determine not to afford to Glencore and its Affiliates the Investor Stockholders or their Affiliates shall be required opportunity to dispose of Equity Securities beneficially owned by them; provided, however, that purchase shares in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentage. (c) Subject to Section 4.1(b) at any time the Investor Stockholders or any of their Affiliates become aware that the Investor Stockholders and their Affiliates beneficially own offering in an amount which would maintain Glencore’s economic interest in the aggregate more than the Permitted Ownership Percentage, then the Investor Stockholders shall, as soon as Company to a level which is reasonably practicable at least equal to forty-seven percent (but in no manner that would require the Investor Stockholders or any such Affiliate to incur liability under Section 16(b47%) of the Exchange Actentire economic interests in the Company, then Glencore may purchase in the open market such number of additional shares of Company Common Stock as shall be sufficient to cause its aggregate economic interest in the Company to be equal to forty-seven percent (47%); provided that any such additional shares of Company Common Stock so acquired shall, take all action necessary for the period ending April 7, 2009, be subject to reduce the amount provisions of Equity Securities beneficially owned by them Section 2.1(c); and their Affiliates provided further, that any such shares so acquired shall be included in the shares to an amount not greater than be taken into account in determining Glencore’s compliance with the Permitted Ownership Percentage requirement in effect at such timerespect of the period from April 8, 2009 to January 7, 2010. As used in this section, the percentage of Glencore and its Affiliates “economic interests” will be calculated as the total number of shares of Company Common Stock, plus the total number of shares of Company Common Stock issuable upon conversion of then outstanding Series A Preferred Stock, in each case held by them, compared to the total number of outstanding shares of Company Common Stock plus the shares of Company Common Stock issuable upon conversion of the then outstanding Series A Preferred Shares.

Acquisition of Additional Voting Securities. (a) Until Subject to Section 7.1(b), during the second anniversary of Standstill Period, the date hereof, except as otherwise provided in this Section 4.1, each of the Investor Stockholders covenants and Equity Purchaser hereby agrees with the Company that it shall not, and that it shall cause each of its controlled Affiliates (including, without limitation, KKR) not to, without the prior approval of the Board of Directors of the Company (excluding, for purposes of such approval, the KKR Representative), directly or indirectly, (i) acquire, offer or propose to acquire or agree to acquire, acquire (whether by purchase, tender or exchange offer, through the an acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) Group, or otherwise), the beneficial ownership of any additional Voting Securities if following such of the Company or any of its Subsidiaries (or any warrants, options or other rights to purchase or acquire, or any securities convertible into, or exchangeable for, any Voting Securities of the Company or any of its Subsidiaries or any other Equity Securities of the Company or any of its Subsidiaries); provided, however, that the foregoing restrictions shall not apply to any acquisition or proposed acquisition (each, an "“Acquisition"”) of beneficial ownership of any additional Voting Securities of the Investor Stockholders Company: (x) if, after giving effect to such Acquisition, the aggregate number of Voting Securities of the Company beneficially owned on a Fully Diluted Basis by the Equity Purchaser (together with their Affiliates its Affiliates) would beneficially own, in the aggregate, in excess of 20not exceed 25% of the voting power represented by total Voting Securities of the Company's Voting Securities , (the "Permitted Ownership Percentage"y) on an as converted and fully diluted basis (except (i) which is by way of stock dividends, stock reclassifications or other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Securities of the Company generally, generally or (iiz) involves Equity Securities acquired from the Company (including upon conversion the Warrant Shares) or otherwise in accordance with the provisions of shares the Agreement and the other Transaction Agreements; (ii) make any public announcement with respect to, or submit any proposal for, any merger, consolidation, sale of Series A Preferred Stock) and substantial assets or other business combination or extraordinary transaction involving the Company or any of its Subsidiaries; (iii) pursuant make, or in any way participate in, any “solicitation” of “proxies” (as such terms are defined or used In Regulation 14A under the Exchange Act) to vote any Voting Securities of the Company or any of its Subsidiaries or seek to advise or influence any Person with respect to the voting of any Voting Securities of the Company or any of its Subsidiaries, (iv) form, join or in any way participate in any Group (other than with respect to its Affiliates) with respect to any of the Voting Securities of the Company; (v) otherwise act, either alone or in concert with others, to seek control of the Company or any of its Subsidiaries; (vi) disclose any intention, proposal, plan or arrangement with respect to any of the foregoing; or (vii) make any demand, request or proposal to amend, waive or terminate any provision of this Agreement Section 7.1 (collectively, the "“Acquisition Restrictions"”); provided. Nothing contained in this Section 7.1 shall be construed to limit or restrict any action take in good faith by the KKR Representative or KKR Observer in his or her capacity as a director or observer at the Company Board, however, that the DP&L Board or any other Applicable Board (b) The foregoing Acquisition Restrictions shall will not apply to any Acquisition that if: (i) a third party who is approved by a majority not an Affiliate of the DirectorsEquity Purchaser or any of its Affiliates (a “Third Party”, excluding which term shall include any Group, other than a Group which includes the Equity Purchaser or any of its Affiliates as a member) commences or publicly announces its intention to commence a bona fide tender or exchange offer for more than 15% of the purposes outstanding Voting Securities of the Company and the Company Board does not recommend against the tender or exchange offer within ten (10) Business Days after the commencement thereof (which, in the case of an exchange offer, shall be deemed to be the effective date of the registration statement relating to the securities offered in such exchange offer or, if permitted under the Exchange Act, such earlier date selected by the offer or for commencement of the exchange offer) or such longer period as shall then be permitted under SEC rules; (ii) a Third Party acquires beneficial ownership of 15% of the Company’s outstanding Voting Securities (other than as a result of purchases of such securities from the Company made with the Equity Purchaser’s prior written consent); (iii) a Third Party makes a bona fide proposal to acquire all or substantially all of the assets of the Company or DP&L that the Company Board is actively negotiating and the consummation of which would require approval of the shareholders of the Company pursuant to the General Corporation Law of the State of Ohio; (iv) a Third Party makes a bona fide proposal to enter into any Investor Directorsacquisition or other business combination transaction with the Company or DP&L that the Company Board is actively negotiating; (v) the Company enters into (or publicly announces its intention to do so) a definitive agreement, or an agreement contemplating a definitive agreement, for any of the foregoing transactions described in clauses (i) to (iv) above; or (vi) the Company or the Trust is in material breach of its obligations under this Agreement. (bc) Upon a repurchase or redemption of Equity Securities by the Company or one or more of its Affiliates or any similar transaction that, by reducing the number of outstanding Equity SecuritiesSecurities of the Company, increases the Investor Stockholders' ownership percentage Ownership Percentage to an amount in excess 25%, neither the Equity Purchaser nor any of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their its Affiliates shall be required to dispose of any Equity Securities beneficially owned by them; provided, however, that in such event, none neither the Equity Purchaser nor any of the Investor Stockholders or their its Affiliates may purchase additional Equity Securities until such time as their ownership percentage the Ownership Percentage is less than the then-applicable Permitted Ownership Percentage25%. (cd) Subject to Section 4.1(b) 7.1(c), if at any time the Investor Stockholders Equity Purchaser or any of their its Affiliates become aware that the Investor Stockholders Equity Purchaser and their its Affiliates beneficially own in the aggregate more than 25% of the Permitted Ownership PercentageVoting Securities, then the Investor Stockholders Equity Purchaser shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders it or any such Affiliate to incur liability under Section 16(b) of the Exchange Act), ) take all reasonable action necessary to reduce the amount of Equity Securities beneficially owned by them it and their its Affiliates to an amount not greater than the Permitted Ownership Percentage in effect at such timepercentage.

Acquisition of Additional Voting Securities. (a) Until During the second anniversary of the date hereofStandstill Period, except as otherwise provided below in this Section 4.1------- 6.1, each of the Investor Stockholders Series C Stockholder covenants and agrees with the Company that it --- shall not, and shall cause each of its controlled Affiliates not to, directly or indirectly, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person (including by way of merger or consolidation), by joining a partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act) Group or otherwise, the beneficial ownership of any additional Voting Securities if following (any such proposed acquisition (of Voting Securities, an "Acquisition") the Investor Stockholders together with their Affiliates would beneficially own, in the aggregate, in excess of 20% of the voting power represented by the Company's Voting Securities (the "Permitted Ownership Percentage") on an as converted and fully diluted basis (except (i) by way of stock dividends, stock reclassifications or ----------- other distributions or offerings made available and, if applicable, exercised on a pro rata basis, to holders of Equity Securities of the Company generally, generally and (ii) Equity Securities acquired from the Company (including upon conversion of shares of Series A Preferred Stock) PIK Shares, Conversion Shares and (iii) Conversion Shares issuable pursuant to this Agreement the operation of the anti-dilution provisions of the Certificate of Designation) (the "Acquisition Restrictions"); provided, however, that the foregoing Acquisition ------------------------- -------- ------- Restrictions shall not apply to (I) any Acquisition in connection with a Series C Stockholder's purchase or other acquisition of all or any portion of another Series C Stockholder's Series C Preferred Stock, (II) any transaction between or among a Series C Stockholder and its Affiliates, (III) any Acquisition that may be deemed to result from the formation or existence of a Group comprising the Series C Stockholders, (IV) any Acquisition arising out of margin lending or other financing activities by a Series C Stockholder in the ordinary course of business, (V) in acquisition made in the course of business of the brokerage or investment banking activities of a Series C Stockholder, or (VI) any Acquisition that is approved by a majority of the Directors, excluding for Class A Directors of the purposes of such approval any Investor DirectorsCompany. (b) Upon The foregoing Acquisition Restrictions will not apply if either (i) a repurchase or redemption third party who is not an Affiliate of Equity Securities by the Company that, by reducing the number of outstanding Equity Securities, increases the Investor Stockholders' ownership percentage to an amount in excess of the then-applicable Permitted Ownership Percentage, none of the Investor Stockholders or their Affiliates shall be required to dispose of Equity Securities beneficially owned by them; provided, however, that in such event, none of the Investor Stockholders or their Affiliates may purchase additional Equity Securities until such time as their ownership percentage is less than the then-applicable Permitted Ownership Percentage. (c) Subject to Section 4.1(b) at any time the Investor Stockholders Series C Stockholder or any of their its Affiliates become aware that (a "Third Party", which term shall include any Group, other than a ----------- Group which includes such Series C Stockholder or any of its Affiliates as a member) commences a tender or exchange offer for more than 50% of the Investor Stockholders outstanding Voting Securities and their Affiliates beneficially own the Board does not recommend against the tender or exchange offer within ten (10) Business Days after the commencement thereof (which, in the aggregate more than case of an exchange offer, shall be deemed to be the Permitted Ownership Percentageeffective date of the registration statement relating to the securities offered in such exchange offer or, then the Investor Stockholders shall, as soon as is reasonably practicable (but in no manner that would require the Investor Stockholders or any such Affiliate to incur liability if permitted under Section 16(b) of the Exchange Act), take all action necessary such earlier date selected by the offer or for commencement of the exchange offer) or such longer period as shall then be permitted under SEC rules, or (ii) a Third Party acquires beneficial ownership of 15% of the outstanding Voting Securities (other than as a result of purchases of such securities from the Company) and publicly discloses a possible intention to reduce seek control of the amount Company or to engage in a transaction that would result in a Change of Equity Securities beneficially owned by them and their Affiliates to an amount not greater than Control of the Permitted Ownership Percentage in effect at such timeCompany.