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. Section 1(a) of the Agreement is hereby amended to provide in its entirety as follows:
Amendment to Definition of Acquiring Person. Section 1(a) of the Amended Rights Agreement is hereby amended to add the following sentence after the last sentence thereof which sentence was added pursuant to Amendment No. 3: Notwithstanding the foregoing, neither Second Holdco nor any of its Affiliates shall become an Acquiring Person as a result of the execution of the Second Merger Agreement or the consummation of the Second Merger by filing the Second Merger Agreement with the Secretary of State of the State of Delaware.
Amendment to Definition of Acquiring Person. The following provision is added as subsection (vii) to Article 1.1(a) of the Shareholder Rights Plan:
Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” set forth in Section 1(a) (Certain Definitions) of the Rights Agreement is hereby amended and supplemented by adding the following sentence to the end thereof: “Notwithstanding anything in this Agreement to the contrary, neither Parent, Holdings, Merger Sub nor any of their existing or future Affiliates or Associates shall be deemed to be an Acquiring Person solely by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) the public or other announcement of the Merger Agreement or the other transactions contemplated by the Merger Agreement or (iii) the consummation of the Merger or the other transactions contemplated by the Merger Agreement (each of the events described in clauses (i), (ii) or (iii) an “Exempt Event”).”
Amendment to Definition of Acquiring Person. Section 1(a) of the Rights Agreement is hereby amended to add the following sentence after the last sentence thereof: “Notwithstanding the foregoing or any provision to the contrary in this Agreement, neither Acquiror nor Merger Sub are, nor shall any of them be deemed to be, an Acquiring Person by virtue of the Transactions.”
Amendment to Definition of Acquiring Person. Section 1(a) of the Rights Agreement is amended to add the following sentence after the last sentence thereof: Anything in this Section 1(a) or this Agreement to the contrary notwithstanding, none of CGEA Holdings, Inc., a Delaware corporation, (“CGEA Holdings”), CGEA Investor, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“CGEA Investor”), nor any of their respective Affiliates is, nor shall any of them be deemed to be, an “Acquiring Person” by virtue of (i) the execution of, or their entry into, the Agreement and Plan of Merger, dated December 18, 2006, by and among the Company, CGEA Holdings and CGEA Investor (as it may be amended from time to time, the “Merger Agreement”); (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 Merger (as defined in the Merger Agreement); or (iv) any other transaction contemplated by the Merger Agreement, it being the purpose of the Company that neither the execution of the Merger Agreement by any of the parties thereto (after giving effect to any amendment to the Merger Agreement) nor the consummation of the transactions contemplated thereby shall in any respect give rise to any provision of this Agreement becoming effective.
Amendment to Definition of Acquiring Person. The first sentence of Section 1(a) of the Rights Agreement is hereby deleted and replaced in its entirety with the following:
Amendment to Definition of Acquiring Person. Section 1(a) (ii) is amended by inserting the following paragraph at the end of such Section 1(a) (ii):
Amendment to Definition of Acquiring Person. (a) The definition of “Acquiring Person” in Section 1(a) of the Agreement is amended by inserting a new Section 1(a)(vii): “Glencore Canada Corporation (“Purchaser”) or its Affiliates or Associates (such Persons together, “Glencore”), either individually or together solely by virtue of, or as a result of (A) Glencore’s beneficial ownership of Common Shares issuable upon conversion of the convertible notes in the aggregate principal amount of $200 million due in 2027 plus any accrued and unpaid interest (as such notes may be amended and restated from time to time, the “2027 Notes”) issued pursuant to that certain note purchase agreement, dated as of May 5, 2022 (the “2022 Note Purchase Agreement”), by and between the Company and an Affiliate of Purchaser, including such Common Shares issuable pursuant to the Company’s right to elect to pay interest in-kind pursuant to the terms of the 2027 Notes, or the issuance to Glencore and the exercise of any warrants upon the redemption of the 2027 Notes in accordance with the terms of the 2027 Notes; (B) the valid and binding approval, execution, and delivery of a note purchase agreement, to be entered into on or around March 11, 2024 (the “2024 Note Purchase Agreement” and together with the 2022 Note Purchase Agreement the “Convertible Note Purchase Agreements”), by and among the Company, Purchaser and an Affiliate of Purchaser to issue to Purchaser a senior secured convertible note due March 2029 in the aggregate principal amount of $75,000,000 (the “2029 Note” and together with the 2027 Notes, the “Convertible Notes”) and the issuance of the 2029 Note to Glencore; (C) the issuance to Glencore of Common Shares upon conversion of the 2029 Note, in whole or in part, in accordance with the terms and conditions thereof, including any such Common Shares issued in connection with any interest the Company elects to pay in-kind; (D) the issuance to Glencore and the exercise of any warrants upon the redemption of the 2029 Note in accordance with the terms and conditions thereof; and (E) the performance or consummation of any of the other transactions contemplated by the Convertible Note Purchase Agreements or Convertible Notes (the foregoing actions being referred to herein as the “Permitted Events”); provided however, that notwithstanding the foregoing and for the avoidance of doubt, Glencore shall be deemed an Acquiring Person if Glencore shall become the Beneficial Owner of such number of additional Common Shares represe...
