CFIUS Uses in CERTAIN DEFINITIONS Clause

CERTAIN DEFINITIONS from Membership Interest Purchase Agreement

This Membership Interest Purchase Agreement (this Agreement) is made and entered into as of July 25, 2016, by and among Waterton Precious Metals Fund II Cayman, LP, a Cayman Islands exempted limited partnership (Seller Parent), Waterton Nevada Splitter, LLC, a Nevada limited liability company (Seller), Klondex Holdings (USA) Inc., a Nevada corporation (Buyer), and Klondex Mines Ltd., a British Columbia corporation (Buyer Parent). Buyer and Buyer Parent sometimes are referred to in this Agreement collectively as the Buyer Parties and each individually as a Buyer Party. Seller Parent, Seller and the Buyer Parties sometimes are referred to in this Agreement collectively as the Parties and each individually as a Party.

CERTAIN DEFINITIONS. As used in this Agreement, the following terms, whether in singular or plural forms, shall have the following meanings: Affiliate means with respect to any Person, any other Person controlling, controlled by or under common control with such Person, with control for such purpose meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise. Affiliate Debt means the indebtedness of the Company to its Affiliates as of the date of this Agreement, as set forth on Schedule 1.1. Business means the ownership of the Hollister Mine and the Esmeralda Mine. Business Day means any day other than Saturday, Sunday or a day on which banking institutions in Toronto, Ontario or Reno, Nevada are required or authorized to be closed. CFIUS Approval means (i) Buyer and Seller shall have received a written notification from CFIUS that it has determined that (A) the acquisition of the Company by the Buyer is not a covered transaction under Section 721; or (B) it has concluded its review (and any applicable investigation) under Section 721 and has determined that there are no unresolved national security concerns with respect to the acquisition of the Company by the Buyer, (ii) the parties shall have received a decision by the President of the United States not to suspend, restrict or prohibit the transactions contemplated by this Agreement, or (iii) the President of the United States, having received a report from CFIUS, has not taken any action within 15 days after having received such report. Closing Date means the date on which Closing occurs. Code means the U.S. Internal Revenue Code of 1986, as amended. Contract means any written contract, mortgage, deed of trust, bond, indenture, lease, license, note, franchise, certificate, option, warrant, right or other instrument, document, obligation or agreement, and any oral obligation, right or agreement. Development Costs means all outstanding payables and other liabilities of the Company or Rock Creek to Seller, Seller Parent, EMG, Waterton Global Resource Management, Inc. or their respective Affiliates, including but not limited to those relating to legal, labour, powerline design, project supervision, environmental, permitting and commissioning costs, that are attributable to development activities, including but not limited to costs relating to transmission lines on or adjacent to the properties of the Company or Rock Creek, prior to Closing. EMG means Elko Mining Group LLC, a Nevada limited liability company. Encumbrance means any security interest, lien, mortgage, indenture, pledge, charge, right of first refusal, easement, lease or sub-lease, right of way, encroachment, deed of trust, restriction on transferability or other similar restriction, option or other encumbrance, whether imposed by agreement, law or otherwise, whether of record or otherwise, together with any agreement to grant any of the foregoing rights or interests. Environmental Law means any Legal Requirement aimed at or in any way relating to pollution, protection or conservation of public health, safety or welfare or the environment, including those relating to emissions, discharges, Releases or threatened Releases of Regulated Substances into the environment (including ambient air, surface water, ground water or land), or otherwise relating to the manufacture, processing, distribution, use, reuse, recycling, treatment, storage, disposal, transport or handling of Regulated Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. SS 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. App. SS 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. SS 6901 et seq.), the Clean Water Act (33 U.S.C. SS 1251 et seq.), the Clean Air Act (42 U.S.C. SS 7401 et seq.) the Toxic Substances Control Act (15 U.S.C. SS 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. SS 136 et seq.), the Emergency Planning and Community Right to Know Act (42 U.S.C. SS 11001 et seq.), and the Safe Drinking Water Act (42 U.S.C. SS 300 et seq.), and all counterpart or other similar Nevada laws, as each has been or may be amended, and the regulations promulgated pursuant thereto. Environmental Liabilities means all liabilities and obligations (i) for the Reclamation of any of the Properties or with respect to any Remedial Action in connection with any of the Properties or the Business, and (ii) associated with noncompliance with Environmental Laws (including fines, penalties, damages and remedies) with respect to any of the Properties or the Business, in each case regardless of when the operations or activities which gave rise to such liabilities or obligations occurred or arose. Esmeralda Royalty means the 3% Net Smelter Returns Royalty on all mi

Certain Definitions from Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER (hereinafter referred to as this Agreement), dated September 12, 2016, is by and between Renesas Electronics Corporation, a Japanese corporation (Parent) and Intersil Corporation, a Delaware corporation (the Company). All capitalized terms used in this Agreement shall have the meanings ascribed to such terms in Section 9.5 or as otherwise defined elsewhere in this Agreement unless the context clearly provides otherwise. Parent and the Company are each sometimes referred to herein as a Party and collectively as the Parties.

Certain Definitions. For the purposes of this Agreement, the term: Accelerated RSU means the portion of each Company RSU (i) that is neither a 2017 Annual Grant nor an award that is not exempt from Code Section 409A pursuant to Treasury Regulations Section 1.409A-1(b)(4), (ii) that is outstanding immediately prior to the Effective Time and (iii) that, in the absence of the Transactions, is not scheduled to vest until calendar years (A) 2017, if the Effective Time occurs prior to April 1, 2017; (B) 2019; and (C) 2020. Acceptable Confidentiality Agreement means a confidentiality agreement that contains terms that are no less favorable in the aggregate to the Company, than those contained in the Confidentiality Agreement; provided, however, that an Acceptable Confidentiality Agreement (i) shall not be required to contain standstill provisions, Table of Contents (ii) shall not provide for an exclusive right to negotiate with the Company, and (iii) shall not restrict the Company from complying with Section 5.2. Action means any and all litigation, suits, actions, legal proceedings, audits, arbitrations or mediations by or before any Governmental Authority. Adverse Law or Order means (i) any Law shall have been enacted or promulgated by any Governmental Authority of competent jurisdiction which prohibits or makes illegal the consummation of the Merger or (ii) there shall be in effect any Order preventing the consummation of the Merger. Antitrust Laws mean any antitrust, competition or trade regulation Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, including the HSR Act. business days means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York and Tokyo, Japan are authorized or required by applicable Law to close. CFIUS means the Committee on Foreign Investment in the United States, and each member agency thereof, acting in such capacity. CFIUS Approval means (i) CFIUS has issued a written notification stating that CFIUS has concluded that the Transactions contemplated by this Agreement are not a covered transaction and not subject to review under applicable Law; (ii) the review of the Transactions contemplated by this Agreement under Section 721 has been concluded, and CFIUS has determined that there are no unresolved national security concerns with respect to the Transactions; or (iii) CFIUS has sent a report to the President of the United States requesting the Presidents decision and either (A) the President has not taken any action within 15 days from the date the President received the report from CFIUS or (B) the President has announced a decision not to take any action to suspend, prohibit or place any limitations on the Transactions. Claim means any and all allegations, claims, demands and causes of action. Code means the Internal Revenue Code of 1986, as amended. Company Bylaws means the amended and restated bylaws of the Company in effect on the date of this Agreement. Company Certificate means the Certificate of Incorporation of the Company in effect on the date of this Agreement. Company Equity Awards means each outstanding award granted under the Company Equity Plans, each option to purchase a share of Company Common Stock under the Company ESPP, and each other outstanding Company Option, Company RSU, Company MSU and Director RSU. Company Equity Plans means: the Companys Amended and Restated 2008 Equity Compensation Plan; the DSU Inducement Award Agreement between the Company and Necip Sayiner, effective April 1, 2013; the Companys 1999 Equity Compensation Plan; the Companys 2009 Option Exchange Plan; and the Company ESPP. Company ERISA Affiliate means any trade or business (whether or not incorporated), which is or within the last six years, has been under common control with the Company within the meaning of Section 4001(b)(1) of ERISA, or which together with the Company is, or within the last six years, has been treated as a single employer for purposes of Section 414(b), (c), (m) or (o) of the Code. Table of Contents Company ESPP means the Companys Employee Stock Purchase Plan (as amended on May 6, 2014). Company Governing Documents means the Company Bylaws and the Company Certificate. Company Immaterial Trademark Licenses means licenses or other rights of use granted by the Company or any Company Subsidiary in respect of Trademarks to Third Party vendors to refer to the Company as a customer and rights granted to third parties as part of corporate sponsorships, or other similar licenses or rights that are not material to the Company or Company Subsidiaries. Company Insiders means those officers and directors of the Company who are subject to the reporting requirements of Section 16(a) of the Exchange Act. Company Intervening Event means an Effect (a) that was not known to the Company Board of Directors, or the material cons

Certain Definitions from Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER, dated as of April 19, 2016 (this Agreement), is made by and among Ninestar Holdings Company Limited, a Cayman Islands exempted limited liability company (Holdings), Ninestar Group Company Limited, a Cayman Islands exempted limited liability company and a wholly owned subsidiary of Holdings (Parent), Ninestar Lexmark Company Limited, a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub), Lexmark International, Inc., a Delaware corporation (the Company), and, solely for purposes of Article 4, Section 5.12, Section 5.16, Section 7.2 and Article 8, Apex Technology Co., Ltd., a company organized under the laws of PRC and listed on the Shenzhen Stock Exchange (Apex). Capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 8.5, Section 8.6 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.

Certain Definitions. For purposes of this Agreement, the term: Acceptable Confidentiality Agreement means a confidentiality agreement that contains confidentiality provisions that are no less favorable in all material respects in the aggregate to the Company than those contained in the Confidentiality Agreement; provided, that any such confidentiality agreement need not contain any standstill or similar provision. Acquisition Proposal means any offer or proposal from a Third Party concerning (a) a merger, consolidation or other business combination transaction involving the Company, (b) a sale, lease or other disposition by merger, consolidation, business combination, share exchange, joint venture or otherwise, which would result in a Third Party acquiring or licensing assets of the Company (including Equity Interests of a Company Subsidiary) or the Company Subsidiaries representing more than 25% of the consolidated assets of the Company and the Company Subsidiaries, based on their fair market value as determined in good faith by the Company Board, (c) an issuance (including by way of merger, consolidation, business combination or share exchange) of Equity Interests representing more than 25% of the voting power of the Company or (d) any combination of the foregoing (in each case, other than the Merger). affiliate means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first-mentioned Person. control (including the terms controlled by and under common control with) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of capital stock or other Equity Interests, as trustee or executor, by Contract or credit arrangement or otherwise. Apex means Apex Technology Co., Ltd. Apex Shareholder Meeting means a meeting of Apexs shareholders, duly called in accordance with the organizational documents of Apex and applicable Law and stock exchange regulations, to be held to seek the Apex Shareholder Approval. Benefit Plan means each (a) employee benefit plan (as defined in Section 3(3) of ERISA but whether or not subject to ERISA, and, for the avoidance of doubt, including any such plans referred to as schemes rather than plans in any non-U.S. jurisdiction), (b) bonus, incentive or deferred compensation or equity or equity-based compensation plan, program, policy, agreement, scheme or arrangement, (c) employment, consulting, severance, change in control, retention or termination plan, program, policy, agreement, scheme or arrangement or (d) other compensation or benefit plan, program, policy, agreement, scheme or arrangement, in each case, sponsored, maintained, contributed to or required to be maintained or contributed to by the Company, any Company Subsidiary or any Commonly Controlled Entity for the benefit of any Participant, or between the Company, any of the Company Subsidiaries or any Commonly Controlled Entity, on the one hand, and any Participant, on the other hand, or with respect to which any potential liability, whether absolute or contingent, is borne by the Company or any of the Company Subsidiaries, and in each case whether or not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded. Business Day means any day other than Saturday, Sunday or any day on which commercial banks in New York, New York, Lexington, Kentucky or the PRC are authorized or required by applicable Law to close, provided, that the reference to the PRC in this definition shall be disregarded when the term is used in Section 5.3. CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act, as amended (42 U.S.C. SS 9601 et seq.). CFIUS means the Committee on Foreign Investment in the United States and each member agency thereof acting in such capacity. CFIUS Approval means (a) a written notice issued by CFIUS that it has concluded a review or investigation of the notification voluntarily provided pursuant to the DPA with respect to the transactions contemplated by this Agreement, and has terminated all action under Section 721 of the DPA or (b) if CFIUS has sent a report to the President of the United States requesting the Presidents decision, then (i) the President has announced a decision not to take any action to suspend or prohibit the transactions contemplated by this Agreement, or (ii) having received a report from CFIUS requesting the Presidents decision, the President has not taken any action after 15 days from the date the President received such report from CFIUS. Code means the United States Internal Revenue Code of 1986, as amended. Commonly Controlled Entity means the Company, any of the Company Subsidiaries or any other Person that, together with the Company, is treated as a single employer under Section 414 of the Code. Company Intellectual Property means all Intellectual Property owned, purported t

Certain Definitions from Agreement and Plan of Merger

THIS AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into as of December 1, 2015 by and among Beijing E-town Dragon Semiconductor Industry Investment Center (Limited Partnership), a PRC limited partnership (Parent), Dragon Acquisition Sub, Inc., a Delaware corporation and a wholly-owned (direct or indirect) subsidiary of Parent (Acquisition Sub), and Mattson Technology, a Delaware corporation (the Company).

Certain Definitions. For all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings: Acceptable Confidentiality Agreement means an agreement that is either (i) in effect as of the execution and delivery of this Agreement or (ii) executed, delivered and effective after the execution, delivery and effectiveness of this Agreement, in either case containing provisions that require any counter-party(ies) thereto (and any of its(their) representatives named therein) that receive material non-public information of or with respect to the Company to keep such information confidential and use such information only in connection with the evaluation of a negotiated transaction; provided that the provisions thereof are no less restrictive in the aggregate to such counter-party(ies) (and any of its(their) representatives named therein) than the terms of the Confidentiality Agreement. Notwithstanding the foregoing, an Acceptable Confidentiality Agreement need not contain any standstill or other similar provisions. Acquisition Proposal means any inquiry, offer or proposal (other than an inquiry, offer or proposal by Parent or Acquisition Sub) to engage in, or otherwise relating to, an Acquisition Transaction. Acquisition Transaction means any transaction or series of related transactions (other than the transactions contemplated by this Agreement) involving: (i) any direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act), whether from the Company and/or any other Person(s), of shares of Company Common Stock representing more than fifteen percent (15%) of the shares of Company Common Stock outstanding after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any Person or group (as defined in or under Section 13(d) of the Exchange Act) that, if consummated in accordance with its terms, would result in such Person or group beneficially owning more than fifteen percent (15%) of the shares of Company Common Stock outstanding after giving effect to the consummation of such tender or exchange offer; (ii) any direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act) of more than fifteen percent (15%) of the consolidated assets of the Company and its Subsidiaries taken as a whole (measured by the fair market value thereof as of the date of such sale, transfer, acquisition or disposition); (iii) any merger, consolidation, business combination, recapitalization or other similar transaction involving the Company pursuant to which any Person or group (as defined in or under Section 13(d) of the Exchange Act), other than the Company Stockholders (as a group) immediately prior to the consummation of such transaction, would hold shares of Company Common Stock representing more than fifteen percent (15%) of the shares of Company Common Stock outstanding after giving effect to the consummation of such transaction; (iv) a liquidation, dissolution or other winding up of the Company; or (v) any combination of the foregoing. Affiliate means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. For purposes of the immediately preceding sentence, the term control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise. Antitrust Law means the Sherman Antitrust Act of 1890, the Clayton Act of 1914, the HSR Act, the Federal Trade Commission Act, and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the transactions contemplated by this Agreement. Business Day means any day, other than a Saturday, Sunday and any day which is a legal holiday under the Laws of the State of California or the PRC is a day on which banking institutions located in the State of California or the PRC are authorized or required by Law or other governmental action to close. CFIUS means the Committee on Foreign Investment in the United States. CFIUS Approval means that either (i) a written notice shall have been issued by CFIUS stating that it has determined that there are no unresolved national security concerns with respect to the transactions contemplated by this Agreement, and has concluded all action under FINSA or (ii) if CFIUS has sent a report

Certain Definitions from Purchase Agreement

This Purchase Agreement (this Agreement) dated as of August 11, 2015 (the Agreement Date), is entered into between Symantec Corporation, a company incorporated under the Laws of the State of Delaware (Seller) and Havasu Holdings Ltd., a Bermuda exempted company (Buyer) (each, a Party and collectively, the Parties).

Certain Definitions. Acquired Rights Directive has the meaning set forth in the definition of Transfer Regulations. Acquisition Entities has the meaning set forth in Schedule 2.7(a) of the Disclosure Letter. Affiliate means (a) in the case of an individual, the individuals spouse (or civil partner) and the members of the immediate family (including parents, siblings, children and spouses (or civil partners) of the foregoing) of (i) the individual, (ii) the individuals spouse (or civil partner) and (iii) any Business Entity that directly or indirectly, through one or more intermediaries, is controlled by, or is under common control with, any of the foregoing individuals, or (b) in the case of a Business Entity, another Business Entity or a Person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Business Entity; provided, that, for the purposes of this definition, control (including with correlative meanings, the terms controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, as used in this Agreement, the term Affiliate shall, with respect to Buyer for all periods following the consummation of the transactions contemplated by this Agreement, include each Purchased Entity and Purchased Minority Interest to be acquired pursuant to this Agreement and any Person it creates to consummate the transactions contemplated by this Agreement, in each case, provided that such Person otherwise satisfies the definition of Affiliate due to the requisite control; provided that no Purchased Entity or Purchased Minority Interest shall be deemed to be an Affiliate of Buyer unless and until legal title to the equity interests of such Person has, directly or indirectly, transferred to Buyer or an Other Buyer in accordance with the terms and provisions of this Agreement and the Equity Transfer Documents. Antitrust Laws mean, individually and collectively, the HSR Act, the United States Sherman Act, as amended, the United States Clayton Act, as amended, the United States Federal Trade Commission Act, as amended, and any other applicable United States federal or state, or foreign or local, Laws, statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization, reduction or restriction of competition or restraint of trade. Applicable Net New Hire Number means if Closing occurs (x) on or before January 1, 2016, 270, (y) after January 1, 2016 and on or before January 29, 2016, 300, and (z) after January 29, 2016, 330. Applicable Patent Cross-License Agreements means the Patent Cross-License Agreements set forth on Schedule 1.1(a)(viii) of the Disclosure Letter. Assumed Benefit Plans means each Seller Benefit Plan that is sponsored or maintained by a Purchased Entity and that will transfer with the Purchased Entity by operation of Law and each New Benefit Plan. Assumed Intercompany Payables means the bona fide intercompany trade payables due and owing from any Purchased Entity, on the one hand, to Seller or any of its Subsidiaries (other than another Purchased Entity), on the other hand, pursuant to, and in accordance with, the Retained Contracts Agreement. Assumed Intercompany Receivables shall mean the bona fide intercompany trade receivables due and owing to any Purchased Entity, on the one hand, from Seller or any of its Subsidiaries (other than another Purchased Entity), on the other hand, pursuant to, and in accordance with, the Retained Contracts Agreement. Automatic Transferred Employees means those employees of the Seller or its Affiliates with respect to whom local employment Laws, including the Transfer Regulations, provide for an automatic transfer of employment, employer substitution or similar method of transfer to Employing Entities or any of its Affiliates in connection with the Operational Separation and who are employed with the Business as of immediately prior to the Operational Separation, but excludes such employees in Chile and Singapore that Seller determines in its sole discretion to not transfer by operation of Law. Burdensome Condition shall mean any of the following: (i) the requirement that Buyer, its Subsidiaries or the Investors enter into a Special Security Agreement, Proxy Agreement or a Voting Trust Agreement as a condition of receiving DSS Approval or (ii) a requirement that (x) materially diminishes the commercial value of, or otherwise materially adversely affects (financially or otherwise), the assets, business, condition, future prospects, results of operation, Buyers control, Buyers liability, or anticipated governance arrangements (except as described in Section 6.3(b)) with re

Certain Definitions from Agreement and Plan of Merger

THIS AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into as of May 17, 2015 by and among BCP IV GrafTech Holdings LP, a Delaware limited partnership (Parent), Athena Acquisition Subsidiary Inc., a Delaware corporation and a wholly owned subsidiary of Parent (Acquisition Sub), and GrafTech International Ltd., a Delaware corporation (the Company).

Certain Definitions. For all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings: Acceptance Time shall mean the initial acceptance for payment by Parent of Company Shares pursuant to the Offer. Acquisition Proposal shall mean any offer or proposal (other than an offer or proposal by Parent or Acquisition Sub) to engage in an Acquisition Transaction. Acquisition Transaction shall mean any transaction or series of related transactions (other than the transactions contemplated by this Agreement and the transactions contemplated by the Investment Agreement) involving: (i) any direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act), whether from the Company and/or any other Person(s), of Company Shares representing more than twenty percent (20%) of the Company Shares outstanding after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any Person or group (as defined in or under Section 13(d) of the Exchange Act) that, if consummated in accordance with its terms, would result in such Person or group beneficially owning more than twenty percent (20%) of the Company Shares outstanding after giving effect to the consummation of such tender or exchange offer; (ii) any direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act) of more than twenty percent (20%) of the consolidated assets of the Company and its Subsidiaries taken as a whole (measured by the fair market value thereof as of the date of such sale, transfer, acquisition or disposition); (iii) any merger, consolidation, business combination, share exchange or other similar transaction involving the Company pursuant to which any Person or group (as defined in or under Section 13(d) of the Exchange Act), other than the Company Stockholders (as a group) immediately prior to the consummation of such transaction, would hold Company Shares representing more than twenty percent (20%) of the Company Shares outstanding after giving effect to the consummation of such transaction; (iv) a liquidation, dissolution or other winding up of the Company; (v) any transaction in which any Person (or the stockholders of any Person) shall acquire, directly or indirectly, beneficial ownership, or the right to acquire beneficial ownership, or formation of any group which beneficially owns or has the right to acquire beneficial ownership of, more than twenty percent (20%) of the Company Shares or securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing more than 20% of the voting power of the Company; or (vi) any combination of the foregoing. Affiliate shall mean, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person; provided, however, that (i) portfolio companies in which any Person or any of its Affiliates has an investment shall not be deemed an Affiliate of such Person and (ii) none of Parent nor Parents Affiliates shall be deemed to be an Affiliate of the Company by virtue of the Investment Agreement or the consummation of the transactions contemplated thereby. For purposes of the immediately preceding sentence, the term control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise. Antitrust Law shall mean the Sherman Antitrust Act of 1890, as amended, the Clayton Act of 1914, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the transactions contemplated by this Agreement. Business Day shall mean any day, other than a Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in the State of New York or the State of Ohio are authorized or required by Law or other governmental action to close. CFIUS shall mean the Committee on Foreign Investment in the United States of America. CFIUS Clearance (organization) values">CFIUS Clearance shall mean (a) the receipt by the parties of written notice from CFIUS pursuant to Exon-Florio with (i) its determination that the transactions contemplated hereby are not subject to Exon-Florio, (ii) its determination fol

Certain Definitions from Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER, dated as of September 18, 2014 (this Agreement), is by and among SAP America, Inc., a Delaware corporation (Parent), Congress Acquisition Corp., a Delaware corporation and a wholly-owned Subsidiary of Parent (Merger Sub), and Concur Technologies, Inc., a Delaware corporation (the Company). All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 8.04 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.

Certain Definitions. For purposes of this Agreement, the term: 2015 Notes means the Companys 2.50% convertible senior notes due April 15, 2015. 2015 Bond Hedges means note hedges, purchased by the Company in connection with the 2015 Notes, covering 5,491,883 Shares at a strike price of $52.35 per share. 2015 Warrants means warrants, issued by the Company in connection with the 2015 Notes, to acquire up to 5,491,883 Shares at an exercise price of $73.29 per share. 2018 Notes means the Companys 0.50% convertible senior notes due June 15, 2018. 2018 Bond Hedges means note hedges, purchased by the Company in connection with the 2018 Notes, covering 4,661,551 Shares at a strike price of $104.85 per share. 2018 Warrants means warrants, issued by the Company in connection with the 2018 Notes, to acquire up to 4,661,551 Shares at an exercise price of $138.48 per share. Acceptable Confidentiality Agreement means a confidentiality agreement that (a) contains provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, provided, that such confidentiality agreement need not contain any standstill provision, (b) does not prohibit the Company from complying with the provisions of Section 5.03 and (c) does not include any provision calling for an exclusive right to negotiate with the Company prior to the termination of this Agreement. Acquisition Inquiry means an inquiry, indication of interest or request for non-public information (other than an inquiry, indication of interest or request for information made or submitted by Parent, Merger Sub, Parents Affiliates or the Parent Representatives) that would reasonably be expected to lead to an Acquisition Proposal. Acquisition Proposal means any offer or proposal (whether or not in writing) concerning, for or relating to any (a) direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act) of beneficial ownership of 15% or more of the total outstanding Equity Interests in or voting securities of the Company, or any tender offer or exchange offer that, if consummated, would result in any Person or group (as defined in or under Section 13(d) of the Exchange Act) beneficially owning 15% or more of the total outstanding Equity Interests in or voting securities of the Company; (b) direct or indirect purchase or other acquisition of 50% or more of any class of equity or other voting securities of one or more Company Subsidiaries, the business(es) of which, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the 12-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole; (c) merger, consolidation, business combination, share exchange, joint venture or other similar transaction involving the Company or one or more Company Subsidiaries, the business(es) of which, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the 12-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the stockholders of the Company (as a group) or such Company Subsidiary or Company Subsidiaries, as applicable, immediately preceding such transaction hold less than 85% of the Equity Interests in or voting securities of the surviving or resulting entity of such transaction; (d) liquidation, dissolution, recapitalization or reorganization of the Company or any Company Subsidiary, other than a wholly-owned Company Subsidiary, (e) direct or indirect sale, transfer or disposition of assets (including by any license or lease, other than licenses or leases under customer agreements entered into in the ordinary course of business) of the Company or one or more Company Subsidiaries, which assets, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the 12-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole; or (f) any combination of the foregoing transactions that results in one of the effects referenced in clauses (a) (e) above; provided that in no event shall the Transactions between Parent, Merger Sub and the Company (or any other transactions between Parent, Merger Sub or their Affiliates, on the one hand, and the Company and

Certain Definitions from Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER, dated as of September 18, 2014 (this Agreement), is by and among SAP America, Inc., a Delaware corporation (Parent), Congress Acquisition Corp., a Delaware corporation and a wholly-owned Subsidiary of Parent (Merger Sub), and Concur Technologies, Inc., a Delaware corporation (the Company). All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 8.04 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.

Certain Definitions. For purposes of this Agreement, the term: 2015 Notes means the Companys 2.50% convertible senior notes due April 15, 2015. 2015 Bond Hedges means note hedges, purchased by the Company in connection with the 2015 Notes, covering 5,491,883 Shares at a strike price of $52.35 per share. 2015 Warrants means warrants, issued by the Company in connection with the 2015 Notes, to acquire up to 5,491,883 Shares at an exercise price of $73.29 per share. 2018 Notes means the Companys 0.50% convertible senior notes due June 15, 2018. 2018 Bond Hedges means note hedges, purchased by the Company in connection with the 2018 Notes, covering 4,661,551 Shares at a strike price of $104.85 per share. 2018 Warrants means warrants, issued by the Company in connection with the 2018 Notes, to acquire up to 4,661,551 Shares at an exercise price of $138.48 per share. Acceptable Confidentiality Agreement means a confidentiality agreement that (a) contains provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, provided, that such confidentiality agreement need not contain any standstill provision, (b) does not prohibit the Company from complying with the provisions of Section 5.03 and (c) does not include any provision calling for an exclusive right to negotiate with the Company prior to the termination of this Agreement. Acquisition Inquiry means an inquiry, indication of interest or request for non-public information (other than an inquiry, indication of interest or request for information made or submitted by Parent, Merger Sub, Parents Affiliates or the Parent Representatives) that would reasonably be expected to lead to an Acquisition Proposal. Acquisition Proposal means any offer or proposal (whether or not in writing) concerning, for or relating to any (a) direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act) of beneficial ownership of 15% or more of the total outstanding Equity Interests in or voting securities of the Company, or any tender offer or exchange offer that, if consummated, would result in any Person or group (as defined in or under Section 13(d) of the Exchange Act) beneficially owning 15% or more of the total outstanding Equity Interests in or voting securities of the Company; (b) direct or indirect purchase or other acquisition of 50% or more of any class of equity or other voting securities of one or more Company Subsidiaries, the business(es) of which, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the 12-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole; (c) merger, consolidation, business combination, share exchange, joint venture or other similar transaction involving the Company or one or more Company Subsidiaries, the business(es) of which, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the 12-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the stockholders of the Company (as a group) or such Company Subsidiary or Company Subsidiaries, as applicable, immediately preceding such transaction hold less than 85% of the Equity Interests in or voting securities of the surviving or resulting entity of such transaction; (d) liquidation, dissolution, recapitalization or reorganization of the Company or any Company Subsidiary, other than a wholly-owned Company Subsidiary, (e) direct or indirect sale, transfer or disposition of assets (including by any license or lease, other than licenses or leases under customer agreements entered into in the ordinary course of business) of the Company or one or more Company Subsidiaries, which assets, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the 12-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole; or (f) any combination of the foregoing transactions that results in one of the effects referenced in clauses (a) (e) above; provided that in no event shall the Transactions between Parent, Merger Sub and the Company (or any other transactions between Parent, Merger Sub or their Affiliates, on the one hand, and the Company and

CERTAIN DEFINITIONS from Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of May 28, 2013, is entered into by and among Shuanghui International Holdings Limited, a corporation formed under the laws of the Cayman Islands (Parent), Sun Merger Sub, Inc., a Virginia corporation and wholly owned subsidiary of Parent (Merger Sub), and Smithfield Foods, Inc., a Virginia corporation (the Company). Each of Parent, Merger Sub and the Company are referred to herein as a Party and together as Parties. Capitalized terms used and not otherwise defined herein have the meanings set forth in Section 9.01.

CERTAIN DEFINITIONS. For purposes of this Agreement: 2022 Notes means the 6.625% senior unsecured notes due 2022 issued pursuant to the Third Supplemental Indenture between the Company and U.S. Bank National Association, as trustee, dated as of August 1, 2012. Acceptable Confidentiality Agreement means a confidentiality and standstill agreement (i) with terms no less favorable to the Company in the aggregate, as determined by the Company in good faith than those contained in the Confidentiality Agreement; provided that such confidentiality and standstill agreement shall expressly not prohibit, or adversely affect the rights of the Company thereunder upon, compliance by the Company with any provision of this Agreement and shall not provide for reimbursement by the Company of any fees, costs or expenses, it being understood that the Company may enter into a confidentiality agreement without a standstill provision or with a standstill provision less favorable to the Company in the aggregate, as determined by the Company in good faith, if it waives or modifies the standstill provision in the Confidentiality Agreement to be substantially similar in the aggregate, as determined by the Company in good faith or (ii) that is in effect as of the date hereof. Account shall have the meaning given to such term in the ESPP. Acquisition Agreement means any merger agreement, acquisition agreement or other similar definitive agreement related to any Acquisition Proposal, other than any Acceptable Confidentiality Agreement referred to in Section 5.02(b). Acquisition Proposal means any inquiry, bid, proposal or offer from any person or group (as defined in the Exchange Act and the rules promulgated thereunder) (other than from Parent or any of its Affiliates) providing for (a) any direct or indirect acquisition or purchase, in a single transaction or a series of related transactions, of (i) in excess of 25% (based on the fair market value, as determined in good faith by the Company Board) of the assets (including capital stock of the Subsidiaries of the Company) of the Company and its Subsidiaries, taken as a whole, or (ii)(A) shares of Company Common Stock, which together with any other shares of Company Common Stock beneficially owned by such person or group, would equal in excess of 25% of the outstanding shares of Company Common Stock, or (B) in excess of 25% of the total voting power of the equity securities of the Company, taken as a whole, (b) any tender offer or exchange offer that, if consummated, would result in any person or group owning, directly or indirectly, in excess of 25% of the outstanding shares of Company Common Stock or in excess of 25% of the total voting power of the equity securities of the Company, taken as a whole, or (c) any merger, consolidation, business combination, recapitalization, liquidation, dissolution, binding share exchange or similar transaction involving the Company or any of its Subsidiaries pursuant to which any person or group other than the Company (or the shareholders of any such person) would own, directly or indirectly, in excess of 25% of the aggregate voting power of the Company or of the surviving entity in a merger of the Company or the resulting direct or indirect parent of the Company or such surviving entity or in excess of 25% (based on the fair market value, as determined in good faith by the Company Board) of the assets (including capital stock of the Subsidiaries of the Company) of the Company and its Subsidiaries, taken as a whole. Affiliate of any person means another person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person. Agreement has the meaning set forth in the Preamble. Alternate Debt Financing has the meaning set forth in Section 6.08(c). Antitrust Law means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, any Foreign Merger Control Law and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition (it being understood that Antitrust Law specifically excludes Exon-Florio and any other laws related to CFIUS). Articles of Merger has the meaning set forth in Section 1.03. Bankruptcy and Equity Exception has the meaning set forth in Section 3.04. Barclays has the meaning set forth in Section 3.25. Book Entry Shares has the meaning set forth in Section 2.03(b). Business Day means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the City of New York. Capitalization Date has the meaning set forth in Section 3.03(a). CFIUS means the Committee on Foreign Investment in the United S

Certain Definitions from Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER, dated as of May 22, 2012 (this Agreement), is by and among SAP America, Inc., a Delaware corporation (Parent), Angel Expansion Corporation, a Delaware corporation and a wholly-owned Subsidiary of Parent (Merger Sub), and Ariba, Inc., a Delaware corporation (the Company). All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 8.04 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.

Certain Definitions. For purposes of this Agreement, the term: Acceptable Confidentiality Agreement means a confidentiality agreement that (a) contains provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, (b) does not prohibit the Company from complying with the provisions of Section 5.03 and (c) does not include any provision calling for an exclusive right to negotiate with the Company prior to the termination of this Agreement. Action means any litigation, action, claim, suit, hearing, arbitration, mediation, investigation or other proceeding (public or private) by or before any Governmental Entity. Acquisition Inquiry means an inquiry, indication of interest or request for non-public information (other than an inquiry, indication of interest or request for information made or submitted by Parent, Merger Sub, Parents Affiliates or the Parent Representatives) that would reasonably be expected to lead to an Acquisition Proposal. Acquisition Proposal means any offer or proposal (whether or not in writing) concerning, for or relating to any (a) any direct or indirect purchase or other acquisition by any Person or group (as defined in or under Section 13(d) of the Exchange Act) of beneficial ownership of 15% or more of the total outstanding Equity Interests in or voting securities of the Company, or any tender offer or exchange offer that, if consummated, would result in any Person or group (as defined in or under Section 13(d) of the Exchange Act) beneficially owning 15% or more of the total outstanding Equity Interests in or voting securities of the Company; (b) any direct or indirect purchase or other acquisition of 50% or more of any class of equity or other voting securities of one or more Company Subsidiaries, the business(es) of which, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the twelve-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the greater of book value or fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole; (c) any merger, consolidation, business combination, share exchange, joint venture or other similar transaction involving the Company or one or more Company Subsidiaries, the business(es) of which, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the twelve-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the stockholders of the Company (as a group) or such Company Subsidiary or Company Subsidiaries, as applicable, immediately preceding such transaction hold less than 85% of the Equity Interests in or voting securities of the surviving or resulting entity of such transaction; (d) any liquidation, dissolution, recapitalization or reorganization of the Company or any Company Subsidiary, other than a wholly-owned Company Subsidiary, (e) any direct or indirect sale, transfer or disposition of assets (including by any license or lease, other than licenses or leases under customer agreements entered into in the ordinary course of business) of the Company or one or more Company Subsidiaries, which assets, individually or in the aggregate, generate or constitute (as applicable) 15% or more of the consolidated net revenues or net income (for the twelve-month period ending on the last day of the Companys most recently completed fiscal quarter) or assets (measured by the fair market value thereof as of the date of such transaction) of the Company and the Company Subsidiaries, taken as a whole; or (f) any combination of the foregoing transactions that results in one of the effects referenced in clauses (a) (e) above; provided that in no event shall the Transactions between Parent, Merger Sub and the Company (or any other transactions between Parent, Merger Sub or their Affiliates, on the one hand, and the Company and the Company Subsidiaries, on the other hand) be deemed to be an Acquisition Proposal. Affiliate means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. After Consultation by a Person means after consultation with such Persons outside legal counsel and, other than with respect to determinations with respect to the fiduciary duties of such Persons board of directors, such Persons financial advisor of nationally recognized reputation (it being acknowledged and agreed that the Company Financial Advisor is a financial advisor of nationally recognized reputation). Antitrust Laws means the Sherman Act of