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 of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding inserting the following at the end thereofof such section: “If any Xxxxxxx Stockholder Notwithstanding anything in this Section 1(a) or this Agreement to the contrary, none of ETFS Capital Limited (“ETFS”), World Gold Council (“WGC”), Gold Bullion Holdings (Jersey) Limited (“GBH”), Rodber Investments Limited (“RIL”), or Xxxxxx Xxxxxxxx (“GT”, and any other person or entity that Xxxxxx X. Xxxxxxx deems appropriate (any such person or entitytogether with ETFS, a WGC, GBH, and RIL, collectively, the “Subject PersonSPA Parties” and each an “SPA Party”) enters into nor any agreementof their respective Affiliates or Associates, arrangement either individually or understanding together, is, nor shall any of them, be deemed to be, an “Acquiring Person” solely by virtue of, or as a result of (whether i) the approval, execution, and delivery of the Sale, Purchase and Assignment Deed, dated as of May 10, 2023, by and between the Company, certain Affiliates of the Company and the SPA Parties (as it may be amended from time to time, the “SPA”), (ii) the public announcement or not in writingpublic disclosure of the SPA or any of transactions contemplated thereby, (iii) for the purpose issuance to GBH of, or the right to be issued, shares of acquiringthe Company’s Series C Non-Voting Convertible Preferred Stock, holdingpar value $0.01 (the “GBH Shares”) pursuant to the SPA, voting (iv) the acquisition of, or disposing the right to acquire, Beneficial Ownership by GBH of or otherwise acting in concert with respect to any shares of Common Stock of the Company issued or issuable upon the conversion of the GBH Shares pursuant to the Certificate of Designations of Series C Non-Voting Convertible Preferred Stock of the Company (any such agreement, arrangement or understanding, a the “Subject ArrangementSeries C Certificate of Designations”), and such Subject Arrangement or (iv) is for the purpose of, or relates to, the pursuit, negotiation performance or consummation of any transaction to acquire of the other transactions contemplated by the SPA, including without limitation the Company and GBH’s entry into the Investor Rights Agreement (as that (Aterm is defined in the SPA) is negotiated, or is proposed by Xxxxxx X. Xxxxxxx to be negotiated, with or through the Special Committee (the foregoing actions being referred to herein as 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 TransactionPermitted Events”), . Notwithstanding the foregoing 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 avoidance of determining whether any Subject Person is doubt, an SPA Party shall be deemed an Acquiring Person, Person if such Subject Person SPA Party shall not be deemed to be become the Beneficial Owner of any additional shares of Voting Common Stock Beneficially Owned by any Xxxxxxx Stockholder (other than pursuant to one or any other Subject Personmore Permitted Events or pursuant to a stock split, in each casestock dividend or similar transaction) unless, solely immediately prior to the time, and as a result result, of any becoming the Beneficial Owner of such Subject Arrangementadditional shares, such SPA Party, together with all Affiliates and Associates thereof, is not the Beneficial Owner of 10% (20% in the event that such SPA Party is then a 13G Investor) or more of the then outstanding shares of Common Stock.”

Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement Tax Benefits Preservation Plan is hereby amended and supplemented by adding inserting the following at the end thereofof such section: “If any Xxxxxxx Stockholder and any other person Notwithstanding anything in this Section 1(a) or entity that Xxxxxx X. Xxxxxxx deems appropriate this Agreement to the contrary neither Luminus Energy Partners Master Fund, Ltd. (any such person or entity, a “Subject PersonLuminus”) enters into nor any agreementof its Affiliates or Associates, arrangement either individually or understanding together, is, nor shall any of them, be deemed to be, an “Acquiring Person” solely by virtue of, or as a result of (whether i) the approval, execution, and delivery of the Warrant Purchase Agreement, dated as of July 31, 2019 (and as it may be amended from time to time), by and between the Company and Luminus (the “Purchase Agreement”), (ii) the public announcement or not in writingpublic disclosure of the Purchase Agreement or any of transactions contemplated thereby, (iii) for the purpose issuance to Luminus of, or the right to be issued, warrants (the “Luminus Warrants”) to purchase shares of acquiringCommon Stock, holdingshares of the Company’s Series B Preferred Stock, voting par value $1.00 per share (the “Series B Preferred Stock”), or disposing other securities of the Company pursuant to the Purchase Agreement, (iv) the acquisition of, or otherwise acting in concert with respect the right to acquire, Beneficial Ownership by Luminus of any shares of Voting Stock (any such agreementCommon Stock, arrangement or understanding, a “Subject Arrangement”), and such Subject Arrangement (i) is for the purpose ofSeries B Preferred Stock, or relates toother securities of the Company issued or issuable upon the exercise of the Luminus Warrants or otherwise pursuant to the Purchase Agreement, or upon the pursuitexchange or conversion of any shares of Common Stock, negotiation Series B Preferred Stock, or other securities issued or issuable pursuant to the exercise of the Luminus Warrants, or otherwise pursuant to the Purchase Agreement, (v) the performance or consummation of any transaction to acquire of the Company that other transactions contemplated by the Purchase Agreement, (Avi) is negotiatedany other acquisition by Luminus or any of its Affiliates of, or is proposed by Xxxxxx X. Xxxxxxx the right to be negotiatedacquire, with Beneficial Ownership of shares of Common Stock, Series B Preferred Stock, or through the Special Committee (the “Special Committee”) other equity securities of the Board Company, or (vii) any acquisition by Luminus or any of Directors its Affiliates of, or the right to acquire, any derivative securities (as defined under Rule 16a-1 under the Exchange Act) that derive their value from the value of any equity security of the Company that is referenced in resolutions adopted by such Board of Directors on May 14, 2007, and (B) is subject the foregoing actions being referred to herein as 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 TransactionPermitted Events”), 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 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.”

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.”