Common use of Amendment to Definition of Acquiring Person Clause in Contracts

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding the following at the end thereof: “If any Xxxxxxx Stockholder and any other person or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entity, a “Subject Person”) enters into any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert with respect to any shares of Voting Stock (any such agreement, arrangement or understanding, a “Subject Arrangement”), and such Subject Arrangement (i) is for the purpose of, or relates to, the pursuit, negotiation or consummation of any transaction to acquire the Company that (A) is negotiated, or is proposed by Xxxxxx X. Xxxxxxx to be negotiated, with or through the Special Committee (the “Special Committee”) of the Board of Directors of the Company that is referenced in resolutions adopted by such Board of Directors on May 14, 2007, and (B) is subject to the execution of definitive documentation that has been approved by the Board of Directors of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (i), a “Negotiated Transaction”), and (ii) does not relate to the pursuit or effectuation of (A) any (x) tender offer, (y) exchange offer or (z) transaction involving securities or assets of the Company that would constitute a “business combination” if it were with an “interested shareholder” (as such terms are defined in Section 912 of the New York Business Corporation Law) or (B) any effort to change the composition of the Board of Directors of the Company or to solicit proxies over Voting Stock, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Person, such Subject Person shall not be deemed to be the Beneficial Owner of any shares of Voting Stock Beneficially Owned by any Xxxxxxx Stockholder or any other Subject Person, in each case, solely as a result of any such Subject Arrangement.”

Amendment to Definition of Acquiring Person. The definition last sentence of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding restated in its entirety to read as follows: Notwithstanding anything to the following at the end thereof: “If any Xxxxxxx Stockholder and any other person or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entity, a “Subject Person”) enters into any agreement, arrangement or understanding (whether or not contrary in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert with respect to any shares of Voting Stock (any such agreement, arrangement or understanding, a “Subject Arrangement”), and such Subject Arrangement this Agreement: (i) is for the purpose ofnone of Parent, Merger Sub or any of their respective Affiliates or Associates shall be, or relates toshall be deemed to be, an Acquiring Person solely by virtue of (w) the execution and delivery of the Merger Agreement or any agreements, arrangements or understandings entered into by Parent, Merger Sub or any of their respective Affiliates or Associates as expressly contemplated by the Merger Agreement (including, without limitation, the pursuitGuarantee, negotiation the Equity Commitment Letters, the Support Agreement and any Additional Rollover Agreements (as defined in the Merger Agreement)) if such agreements, arrangements or consummation of any transaction to acquire understandings are in accordance with the Company that (A) is negotiated, or is proposed by Xxxxxx X. Xxxxxxx to be negotiated, with or through the Special Committee (the “Special Committee”) terms and conditions of the Board of Directors of the Company that is referenced in resolutions adopted by such Board of Directors on May 14Merger Agreement, 2007, and (B) is subject to the execution of definitive documentation that has been approved by the Board of Directors of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (i), a “Negotiated Transaction”), and (ii) does not relate to the pursuit or effectuation of (A) any (x) tender offerthe announcement of the Merger Agreement or the Merger, (y) exchange offer the consummation of the Merger or (z) transaction involving securities or assets the consummation of the Company that would constitute a “business combination” if it were with an “interested shareholder” other transactions contemplated by the Merger Agreement (as such including, without limitation, the transactions contemplated by the Guarantee, the Equity Commitment Letters, the Support Agreement and any Additional Rollover Agreements) upon the terms are defined in Section 912 and conditions of the New York Business Corporation LawMerger Agreement; (ii) none of Parent, Merger Sub, Sponsor, Significant Stockholder, any other party to the Support Agreement, any Additional Rollover Stockholder or (B) any effort to change the composition of the Board of Directors of the Company their respective Affiliates or to solicit proxies over Voting StockAssociates shall be, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Person, such Subject Person shall not be deemed to be be, an Acquiring Person solely by virtue of (x) the Beneficial Owner execution and delivery of the Support Agreement, the Additional Rollover Agreements (if any, as defined in the Merger Agreement), the Side Agreement or any shares of Voting Stock Beneficially Owned agreements, arrangements or understandings entered into by any Xxxxxxx Parent, Merger Sub, Sponsor, Significant Stockholder or any other Subject party to the Support Agreement as expressly contemplated by the Support Agreement (including, without limitation, the Letters of Commitment and the Subscription Agreement (as defined in the Support Agreement)), any Additional Rollover Agreement or the Side Agreement or (y) any actions taken pursuant to the Support Agreement, the Additional Rollover Agreements (if any), the Side Agreement or any such other agreements, arrangements or understandings (each of the events set forth in the foregoing clauses (i)(w), (i)(x), (i)(y), (i)(z), (ii)(x) and (ii)(y), a "Merger Exempt Event"); and (iii) in the event that any Person to whom a Merger Exempt Event applies is also referred to in the parenthetical in clause (iv), (v) and/or (vi) of the definition of Excluded Person, in each case, solely as a result of any such Subject Arrangementparenthetical shall be deemed not to apply to such Person.”

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding to add the following at sentence after the end last sentence thereof: “If any Xxxxxxx Stockholder and any other person Notwithstanding anything in this Section 1(a) or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entitythis Agreement to the contrary, none of Odyssey HealthCare Holding Company, a Delaware corporation (“Subject Person”) enters into any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert with respect to any shares of Voting Stock (any such agreement, arrangement or understanding, a “Subject ArrangementParent”), OHC Investment, Inc., a Delaware corporation and such Subject Arrangement a wholly owned subsidiary of Parent (“Merger Sub”), or any of their respective Affiliates or Associates is, nor shall any of them be deemed to be, an “Acquiring Person” by virtue of (i) is for the purpose execution of, or relates their entry into, the Agreement and Plan of Merger, dated January 15, 2008, by and among the Company, Parent and Merger Sub (as it may be amended from time to time, the “Merger Agreement”), including any amendment or supplement thereto; (ii) their acquisition or their right to acquire, beneficial ownership of Common Stock as a result of their execution of the Merger Agreement; (iii) the consummation of the Offer (as defined in the Merger Agreement) or the Merger (as defined in the Merger Agreement), in each case in accordance with, pursuant to, and on the pursuit, negotiation terms and subject to the conditions set forth in the Merger Agreement; or consummation of any transaction to acquire (iv) the Company that (A) is negotiatedexecution of, or is proposed by Xxxxxx X. Xxxxxxx to be negotiatedtheir entry into, with the Stockholder Agreements (as defined in the Merger Agreement), including any amendment or through supplement thereto; it being the Special Committee (the “Special Committee”) of the Board of Directors purpose and intent of the Company that is referenced in resolutions adopted by such Board of Directors on May 14, 2007, and (B) is subject to neither the execution of definitive documentation that has been approved the Merger Agreement by any of the parties thereto (after giving effect to any amendment to the Merger Agreement entered into by the Board of Directors Company) nor the consummation of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (i), a “Negotiated Transaction”), and (ii) does not relate to the pursuit or effectuation of (A) any (x) tender offer, (y) exchange offer or (z) transaction involving securities or assets of the Company that would constitute a “business combination” if it were with an “interested shareholder” (as such terms are defined in Section 912 of the New York Business Corporation Law) or (B) any effort to change the composition of the Board of Directors of the Company or to solicit proxies over Voting Stock, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Person, such Subject Person shall not be deemed to be the Beneficial Owner of any shares of Voting Stock Beneficially Owned by any Xxxxxxx Stockholder or any other Subject Persontransactions contemplated thereby, in each casecase in accordance with, solely as a result pursuant to and upon the terms and conditions of the Merger Agreement, shall in any such Subject Arrangementrespect give rise to any provision of this Agreement becoming effective.”

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding to add the following at sentence after the end last sentence thereof: “If any Xxxxxxx Stockholder and any other person Anything in this Section 1(a) or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entitythis Agreement to the contrary notwithstanding, none of BMCA Acquisition Inc., a Delaware corporation (“Subject Person”) enters into any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert with respect to any shares of Voting Stock (any such agreement, arrangement or understanding, a “Subject ArrangementParent”), BMCA Acquisition Sub Inc., a Delaware corporation and such Subject Arrangement a wholly owned subsidiary of Parent (“Merger Sub”), nor any of their respective Affiliates is, nor shall any of them be deemed to be, an “Acquiring Person” by virtue of (i) is for the purpose execution of, or relates their entry into, the Agreement and Plan of Merger, dated February 9, 2007, by and among the Company, Parent and Merger Sub (as it may be amended from time to time, the “BMCA Merger Agreement”); (ii) their acquisition or their right to acquire, beneficial ownership of Common Stock as a result of their execution of the BMCA Merger Agreement; (iii) the consummation of the Offer (as defined in the BMCA Merger Agreement) or the Merger (as defined in the BMCA Merger Agreement), in each case in accordance with, pursuant to, and on the pursuit, negotiation or consummation of any transaction terms and subject to acquire the Company that (A) is negotiated, or is proposed by Xxxxxx X. Xxxxxxx to be negotiated, with or through conditions set forth in the Special Committee (BMCA Merger Agreement; it being the “Special Committee”) of the Board of Directors purpose of the Company that is referenced in resolutions adopted by such Board of Directors on May 14, 2007, and (B) is subject to neither the execution of definitive documentation that has been approved the BMCA Merger Agreement by any of the parties thereto (after giving effect to any amendment to the BMCA Merger Agreement entered into by the Board of Directors Company) nor the consummation of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (i), a “Negotiated Transaction”), and (ii) does not relate to the pursuit or effectuation of (A) any (x) tender offer, (y) exchange offer or (z) transaction involving securities or assets of the Company that would constitute a “business combination” if it were with an “interested shareholder” (as such terms are defined in Section 912 of the New York Business Corporation Law) or (B) any effort to change the composition of the Board of Directors of the Company or to solicit proxies over Voting Stock, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Person, such Subject Person shall not be deemed to be the Beneficial Owner of any shares of Voting Stock Beneficially Owned by any Xxxxxxx Stockholder or any other Subject Persontransactions contemplated thereby, in each casecase in accordance with, solely as a result pursuant to and upon the terms and conditions of the BMCA Merger Agreement, shall in any such Subject Arrangementrespect give rise to any provision of this Agreement becoming effective.”

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding to add the following sentence at the end thereof: “If any Xxxxxxx Stockholder and any other person or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entity, a “Subject Person”) enters into any agreement, arrangement or understanding (whether or not Notwithstanding anything to the contrary in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert with respect to any shares of Voting Stock (any such agreement, arrangement or understanding, a “Subject Arrangement”), and such Subject Arrangement this Agreement: (i) is for the purpose ofnone of Parent, Merger Sub or any of their respective Affiliates or Associates shall be, or relates toshall be deemed to be, an Acquiring Person solely by virtue of (w) the execution and delivery of the Merger Agreement or any agreements, arrangements or understandings entered into by Parent, Merger Sub or any of their respective Affiliates or Associates as expressly contemplated by the Merger Agreement (including, without limitation, the pursuitGuarantees, negotiation the Equity Commitment Letters, the Support Agreement and any Additional Rollover Agreements (as defined in the Merger Agreement)) if such agreements, arrangements or understandings are in accordance with the terms and conditions of the Merger Agreement, (x) the announcement of the Merger Agreement or the Merger, (y) the consummation of the Merger or (z) the consummation of the other transactions contemplated by the Merger Agreement (including, without limitation, the transactions contemplated by the Guarantees, the Equity Commitment Letters, the Support Agreement and any transaction Additional Rollover Agreements) upon the terms and conditions of the Merger Agreement; (ii) none of Parent, Merger Sub, Sponsor, Significant Stockholder, any other party to acquire the Company that (A) is negotiatedSupport Agreement, any Additional Rollover Stockholder or any of their respective Affiliates or Associates shall be, or is proposed shall be deemed to be, an Acquiring Person solely by Xxxxxx X. Xxxxxxx to be negotiated, with or through virtue of (x) the Special Committee (the “Special Committee”) execution and delivery of the Board Support Agreement, the Additional Rollover Agreements (if any, as defined in the Merger Agreement) or any agreements, arrangements or understandings entered into by Parent, Merger Sub, Sponsor, Significant Stockholder or any other party to the Support Agreement as expressly contemplated by the Support Agreement (including, without limitation, the Letters of Directors Commitment and the Subscription Agreement (as defined in the Support Agreement)) or any Additional Rollover Agreement or (y) any actions taken pursuant to the Support Agreement, the Additional Rollover Agreements (if any) or any such other agreements, arrangements or understandings (each of the Company that is referenced events set forth in resolutions adopted by such Board of Directors on May 14the foregoing clauses (i)(w), 2007(i)(x), (i)(y), (i)(z), (ii)(x) and (B) is subject to the execution of definitive documentation that has been approved by the Board of Directors of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (iii)(y), a “Negotiated TransactionMerger Exempt Event”), and ; and (iiiii) does not relate in the event that any Person to whom a Merger Exempt Event applies is also referred to in the pursuit or effectuation of parenthetical in clause (A) any (x) tender offeriv), (yv) exchange offer or and/or (zvi) transaction involving securities or assets of the Company that would constitute a “business combination” if it were with an “interested shareholder” (as such terms are defined in Section 912 definition of the New York Business Corporation Law) or (B) any effort to change the composition of the Board of Directors of the Company or to solicit proxies over Voting Stock, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Excluded Person, such Subject Person parenthetical shall not be deemed not to be the Beneficial Owner of any shares of Voting Stock Beneficially Owned by any Xxxxxxx Stockholder or any other Subject apply to such Person, in each case, solely as a result of any such Subject Arrangement.”

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding to add the following at sentence after the end last sentence thereof: “If Notwithstanding anything in this Section 1(a) or any Xxxxxxx Stockholder other provision of this Agreement to the contrary, none of Blue Holdings I, L.P., a Delaware limited partnership (“Holdco”), or any of its Affiliates or Associates (including any Person who is an Associate of Holdco and any other person or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entity, a “Subject Person”) enters into any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert Person with respect to which Holdco is an Associate), is, nor shall any shares of Voting Stock them be deemed to be, an “Acquiring Person” by virtue of (any such agreementi) the approval, arrangement execution, delivery or understandingperformance of the Agreement and Plan of Merger, to be dated as of February 3, 2015, by and among Blue Acquisition Group, Inc., a Delaware corporation, the Company, SPF Holdings I, Inc., a Delaware corporation, SPF Holdings II, LLC, a Delaware limited liability company, and for the limited purposes set forth therein, Holdco (as it may be amended from time to time, the “Subject ArrangementMerger Agreement”); (ii) the approval, execution, delivery or performance of the Shareholders Agreement, to be dated as of February 3, 2015, among the Company, Holdco, Kohlberg Kravis Xxxxxxx & Co. L.P. (“KKR”), Vestar Capital Partners (“Vestar”), Centerview Capital Management LLC (“Centerview”), AlpInvest Partners US Holdings, LLC (“AlpInvest”), and such Subject Arrangement certain other shareholders party thereto (i) is for the purpose of, or relates toas it may be amended from time to time, the pursuit“Shareholders Agreement”); (iii) the approval, negotiation execution, delivery or performance of any other contract or instrument contemplated by the Merger Agreement or the Shareholders Agreement; (iv) the announcement or consummation of any transaction the transactions contemplated by the Merger Agreement (including the Mergers (as defined in the Merger Agreement)) or the Shareholders Agreement, in accordance with, pursuant to acquire and upon the Company that (A) is negotiated, or is proposed by Xxxxxx X. Xxxxxxx to be negotiated, with or through the Special Committee (the “Special Committee”) terms and conditions of the Board Merger Agreement and the Shareholders Agreement; (v) the acquisition of Directors Beneficial Ownership of Common Shares acquired in the Mergers (as defined in the Merger Agreement) pursuant to the Merger Agreement; or (vi) the acquisition of Beneficial Ownership of Common Shares pursuant to and as permitted by the Shareholders Agreement; it being the purpose and intent of the Company that is referenced in resolutions adopted neither the approval, execution, delivery or performance of the Merger Agreement or the Shareholders Agreement by such Board any of Directors on May 14, 2007, and the parties thereto (B) is subject after giving effect to any amendment or waiver to the execution of definitive documentation that Merger Agreement to which the Company has been approved by consented in writing and/or any amendment or waiver to the Board of Directors Shareholders Agreement to which the Company has consented in writing) nor the announcement or consummation of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (i), a “Negotiated Transaction”), and (ii) does not relate to the pursuit or effectuation of (A) any (x) tender offer, (y) exchange offer or (z) transaction involving securities or assets of the Company that would constitute a “business combination” if it were with an “interested shareholder” (as such terms are defined in Section 912 of the New York Business Corporation Law) or (B) any effort to change the composition of the Board of Directors of the Company or to solicit proxies over Voting Stock, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Person, such Subject Person shall not be deemed to be the Beneficial Owner of any shares of Voting Stock Beneficially Owned by any Xxxxxxx Stockholder or any other Subject Persontransactions contemplated thereby, in each casecase in accordance with, solely as a result pursuant to and upon the terms and conditions of the Merger Agreement and the Shareholders Agreement, shall in any such Subject Arrangementrespect give rise to any provision of this Agreement becoming effective.”

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding to add the following at sentence after the end last sentence thereof: “If any Xxxxxxx Stockholder and any other person Anything in this Section 1(a) or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entitythis Agreement to the contrary notwithstanding, none of Colonel Holdings, Inc., a Delaware corporation (“Subject Person”) enters into any agreement, arrangement or understanding (whether or not in writing) for the purpose of acquiring, holding, voting or disposing of or otherwise acting in concert with respect to any shares of Voting Stock (any such agreement, arrangement or understanding, a “Subject ArrangementParent”), Colonel Merger Sub, Inc., a Delaware corporation and such Subject Arrangement a wholly-owned subsidiary of Parent (“Merger Sub”), any stockholder of the Company party to a support agreement with Parent to be dated as of May 10, 2011 (collectively, as they may be amended from time to time, the “Support Agreements”) or any of their respective Affiliates or Associates, is, nor shall any of them be deemed to be, an “Acquiring Person” by virtue of (i) is for the purpose execution of, or relates their entry into, the Agreement and Plan of Merger, to be dated as of May 10, 2011 by and among the Company, Parent and Merger Sub (as it may be amended from time to time, the “Merger Agreement”); (ii) the execution of, or their entry into, any of the Support Agreements; (iii) the execution of, or their entry into, any other contract or instrument in connection with the Merger Agreement or any of the Support Agreements; (iv) their acquisition or their right to acquire, beneficial ownership of Common Stock as a result of their execution of the Merger Agreement; or (v) the consummation of the Offer (as defined in the Merger Agreement) or the Merger (as defined in the Merger Agreement), in each case in accordance with, pursuant to, and on the pursuit, negotiation or consummation of any transaction terms and subject to acquire the Company that (A) is negotiated, or is proposed by Xxxxxx X. Xxxxxxx to be negotiated, with or through conditions set forth in the Special Committee (Merger Agreement; it being the “Special Committee”) of the Board of Directors purpose of the Company that is referenced in resolutions adopted by such Board of Directors on May 14, 2007, and (B) is subject to neither the execution of definitive documentation that has been approved the Merger Agreement or the Support Agreements by any of the parties thereto (after giving effect to any amendment to the Merger Agreement entered into by the Board of Directors Company and/or any amendment to a Support Agreement to which the Company has consented (such consent not to be unreasonably withheld, condition or delayed)) nor the consummation of the Company upon the recommendation of the Special Committee (any such transaction to acquire the Company as described in this clause (i), a “Negotiated Transaction”), and (ii) does not relate to the pursuit or effectuation of (A) any (x) tender offer, (y) exchange offer or (z) transaction involving securities or assets of the Company that would constitute a “business combination” if it were with an “interested shareholder” (as such terms are defined in Section 912 of the New York Business Corporation Law) or (B) any effort to change the composition of the Board of Directors of the Company or to solicit proxies over Voting Stock, in the case of each of the immediately preceding clause (A) and this clause (B), that is not a Negotiated Transaction or a part of a Negotiated Transaction, then, for the purposes of determining whether any Subject Person is an Acquiring Person, such Subject Person shall not be deemed to be the Beneficial Owner of any shares of Voting Stock Beneficially Owned by any Xxxxxxx Stockholder or any other Subject Persontransactions contemplated thereby, in each casecase in accordance with, solely as a result pursuant to and upon the terms and conditions of the Merger Agreement and the Support Agreements, shall in any such Subject Arrangementrespect give rise to any provision of this Agreement becoming effective.”