Amendments to Rights Agreement. The Rights Agreement is hereby amended as follows:
(a) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is amended by inserting the following new sentence at the end of such definition: “Notwithstanding anything in this Agreement to the contrary, none of Xxxxxxx Corporation, Smile Acquisition Corp. or any Affiliate or Associate of either shall be deemed to be an Acquiring Person or a Beneficial Owner of Common Stock, either individually or collectively, solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.”
(b) The definition of “Stock Acquisition Date” in Section 1(dd) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Stock Acquisition Date shall not be deemed to have occurred solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.”
(c) The definition of “Triggering Event” in Section 1(ii) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Triggering Event shall not be deemed to have occurred solely as a result of (i) the approval, execution, delivery, announcement or performance of the Merger Agreement; (ii) the commencement or consummation of the Offer; or (iii) the consummation of the Merger or any of the other transactions contemplated in the Merger Agreement.”
(d) The following definitions are added to Section 1 of the Rights Agreement: “(jj) ‘Merger’ shall mean the merger of Smile Acquisition Corp. with and into the Company, in accordance with the terms and conditions of the Merger Agreement. (kk) ‘Merger Agreement’ shall mean the Agreement and Plan of Merger dated as of April 12, 2006 by and among Xxxxxxx Corporation, Smile Acquisition Corp. and the Company, as amended from time to time. (ll) ‘Offer’ shall mean the tender offer by Smile Acquisition Corp. commenced pursuant to the Merger Agreement.”
(e) Section 3(a) of the Rights Agreement is amended to add the following sentence at the end ther...
Amendments to Rights Agreement. The Rights Agreement is hereby amended as follows:
(A) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is hereby amended and restated in its entirety to read as follows:
Amendments to Rights Agreement. (a) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is amended by inserting the following as a new paragraph at the end of such definition: “Notwithstanding anything in this Section 1(a) to the contrary, none of UNCN Holdings, Inc., a Delaware corporation (“Parent”), UNCN Acquisition Corp., a Delaware corporation (“Merger Sub”), any employees or stockholders of the Company who have agreed or after the date hereof shall agree with Parent to contribute Common Shares to Parent or Merger Sub in exchange for shares of Parent capital stock immediately prior to the Effective Time (as defined below) (such agreements to contribute being hereinafter defined as “Contribution Agreements”), or any of their respective Affiliates or Associates (including without limitation Welsh, Carson, Axxxxxxx & Sxxxx X, L.P., WCAS Capital Partners IV, L.P. and each of their general and limited partners), either individually, collectively or in any combination, shall be deemed to be an “Acquiring Person” solely by virtue or as a result of (i) the approval, execution, delivery, adoption or performance of the Agreement and Plan of Merger, dated as of January 7, 2007, among Parent, Merger Sub and the Company (as it may be amended or supplemented from time to time, the “Merger Agreement”), (ii) the consummation of the Merger (as defined in the Merger Agreement) or any other transactions contemplated thereby or (iii) the execution, delivery or performance of the Contribution Agreements (such actions described in this sentence, collectively, the “Permitted Events”, and individually, a “Permitted Event”).”
(b) The definition of “Shares Acquisition Date” in Section 1(aa) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Shares Acquisition Date shall not be deemed to have occurred solely by virtue or as a result of the public announcement of any Permitted Event.”
(c) Section 3(a) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement to the contrary, a Distribution Date shall not be deemed to have occurred solely as the result of any Permitted Event.”
(d) Section 8(a) of the Rights Agreement is modified, amended and restated as follows: “Subject to the provisions of Section 8(e) hereof, the registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise p...
Amendments to Rights Agreement. The Rights Agreement shall be amended as follows:
(a) The first sentence of Section 3(a) of the Rights Agreement is hereby amended by deleting the words ",provided that if such determination occurs on or after the date of an Adverse Change in Control, then such date may be extended only if there are Continuing Directors in office and such extension is authorized by a majority of such Continuing Directors".
(b) Section 23(a) is hereby deleted in its entirety and replaced with the following:
01. The Company may, at its option, pay the Redemption Price in cash, shares of Common Stock (based on the current market price per share at the time of redemption) or any other form of consideration deemed appropriate by the Board of Directors.".
(c) The first and second sentences of Section 27 are hereby deleted in their entirety and replaced with the following: "Prior to the earliest of (i) the Distribution Date or (ii) a Triggering Event, the Company may and the Rights Agent shall, if the Company so directs, supplement or amend any provision of this Agreement (including supplements or amendments that may be deemed to affect the interests of the holders of Right Certificates adversely) without the approval of any holders of certificates representing shares of Common Stock and associated Rights. From and after the earliest of (i) the Distribution Date or (ii) a Triggering Event, the Company may and the Rights Agent shall, if the Company so directs, supplement or amend this Agreement without the approval of any holders of Right Certificates (i) to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein or (ii) to make any other changes or provisions in regard to matters or questions arising hereunder which the Company may deem necessary or desirable; provided, however, that no such supplement or amendment shall adversely affect the interests of the holders of Rights as such (other than an Acquiring Person or an Affiliate or Associate of any such Acquiring Person), and no such supplement or amendment may cause the Rights again to become redeemable at such the as the Rights are not then redeemable or cause this Agreement again to become amendable other than in accordance with this sentence."
(d) The third sentence of Section 27 is hereby amended by deleting the words "or, so long as any Person is an Acquiring Person hereunder, the Continuing Directors".
Amendments to Rights Agreement. The Rights Agreement is hereby amended as follows:
(a) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is amended to add the following sentence at the end thereof: Notwithstanding anything in this Agreement to the contrary, none of Atlas Copco North America LLC (“Parent”), Odyssey Acquisition Corp. (“Merger Subsidiary”), or any Affiliate or Associate of Parent or Merger Subsidiary shall be deemed to be an Acquiring Person (or an Associate or Affiliate of an Acquiring Person), either individually or collectively, as a result of the execution, delivery, announcement, consummation or performance of the Merger Agreement, the Voting Agreement, the Merger or the Transactions, and shares of Common Stock acquired pursuant to the Merger Agreement, the Voting Agreement, the Merger or the Transactions shall not be aggregated with shares of Common Stock beneficially owned by Parent, Merger Subsidiary or any Affiliate or Associate of Parent or Merger Subsidiary on the date hereof for purposes of determining whether Parent, Merger Subsidiary or any Affiliate or Associate of Parent or Merger Subsidiary is an Acquiring Person (or an Associate or Affiliate of an Acquiring Person).
(b) The definition of “Distribution Date” in Section 1 of the Rights Agreement is amended to add the following at the end thereof (before the “.”): ; provided, however, a Distribution Date shall not be deemed to have occurred as a result of the execution, delivery, announcement, consummation or performance of the Merger Agreement, the Voting Agreement, the Merger or the Transactions.
(c) The definition of “Shares Acquisition Date” in Section 1 of the Rights Agreement is amended to add the following clause at the end thereof (before the “.”): ; provided, however, that a Share Acquisition Date shall not be deemed to have occurred as a result of the execution, delivery, announcement, consummation or performance of the Merger Agreement, the Voting Agreement, the Merger or the Transactions
(d) The definition of “Triggering Event” in Section 1 of the Rights Agreement is amended to add the following sentence at the end thereof: Notwithstanding anything to the contrary contained in this Agreement, a Triggering Event shall not include the execution, delivery, announcement, consummation or performance of the Merger Agreement, the Voting Agreement, the Merger or the Transactions.
(e) The following definitions shall be added to Section 1 of the Rights Agreement:
Amendments to Rights Agreement. The Rights Agreement is hereby amended as follows:
(a) The definition of “Final Expiration Date” in Section 1 the Rights Agreement is hereby amended and restated in its entirety to read as follows:
Amendments to Rights Agreement. The Rights Agreement is hereby amended as set forth in this Section 2.
(a) The definition of "Acquiring Person" in Section 1 of the Rights Agreement is amended to add the following sentence at the end thereof: "Notwithstanding anything in this Agreement to the contrary, none of Parent, Merger Sub or any Affiliate or Associate of either of them shall be deemed to be an Acquiring Person, either individually or collectively, solely by virtue of (i) the execution and delivery of the Merger Agreement, (ii) the conversion of shares of Common Stock into the right to receive the Merger Consideration (as such term is defined in the Merger Agreement) in accordance with Article II of the Merger Agreement or (iii) the consummation of the Merger (as such term is defined in the Merger Agreement) or any other transaction contemplated by the Merger Agreement."
(b) The definition of "Flip-In Event" in Section 1 of the Rights Agreement is amended to add the following sentence at the end thereof: "Notwithstanding anything in this Agreement to the contrary, none of (i) the announcement of the Merger (as such term is defined in the Merger Agreement), (ii) the execution of the Merger Agreement or (iii) the consummation of the Merger or of the other transactions contemplated by the Merger Agreement shall be a Flip-In Event."
Amendments to Rights Agreement. The Rights Agreement is hereby amended as follows:
Amendments to Rights Agreement. The Rights Agreement is hereby amended as set forth in this Section 1.
(a) The definition of "Acquiring Person" in Section 1(a) of the Rights Agreement is hereby amended by adding the following sentence at the end thereof: "Notwithstanding anything in this Agreement to the contrary, none of MMC Norilsk Nickel, Norimet, Limited or any of their Subsidiaries or Affiliates shall be deemed an Acquiring Person solely by reason or as a result of the execution or delivery of the Stock Purchase Agreement or the Stockholders Agreement or the consummation of transactions contemplated by either of such agreements, including, but not limited to: (i) the issuance of shares of Common Stock by the Company to Norimet, Limited pursuant to Article II of the Stock Purchase Agreement, (ii) the tender offer for shares of Common Stock by Norimet, Limited pursuant to Article IX of the Stock Purchase Agreement and (iii) the acquisition of shares of Common Stock pursuant to clause (iii) of Section 5.1(a) of the Stockholders Agreement."
(b) The definition of "Stock Acquisition Date" in Section 1 of the Rights Agreement is hereby amended by adding the following sentence to the end of paragraph (ee) of Section 1: "A Stock Acquisition Date shall not occur as a result of the execution or delivery of the Stock Purchase Agreement any transaction contemplated thereby."
(c) The following definitions are hereby added to Section 1 of the Rights Agreement in the appropriate alphabetical order:
Amendments to Rights Agreement. The Rights Agreement is hereby amended as set forth in this Section 1.
a. The definition of “Exempt Person” set forth in Section 1(l) of the Rights Agreement is hereby amended to read in its entirety as follows:
