Acquiring Person

Acquiring Person. (a) “Acquiring Person” shall mean (i) any Person who or which, together with all Affiliates of such Person, shall be the Beneficial Owner of 5% or more of the then outstanding Common Shares (other than as a result of a Permitted Offer (as hereinafter defined)) or was such a Beneficial Owner at any time after the date hereof, whether or not such person continues to be the Beneficial Owner of 5% or more of the then outstanding Common Shares and (ii) any Person who or which, together with all... Affiliates of such Person, was the Beneficial Owner of 5% or more of the then outstanding Common Shares at any time prior to the date hereof, and thereafter such Beneficial Owner’s ownership interest increases by 1% or more of the then outstanding Common Shares (other than as a result of a Permitted Offer). Notwithstanding the foregoing, (A) the term “Acquiring Person” shall not include (i) the Corporation, (ii) any Subsidiary of the Corporation, (iii) any employee benefit plan (including options granted thereunder) of the Corporation or of any Subsidiary of the Corporation, or (iv) any Person or entity organized, appointed or established by the Corporation for or pursuant to the terms of any such plan (including the Fog Cutter Long Term Vesting Trust), and (B) no Person shall become an “Acquiring Person”: (i) as a result of the acquisition of Common Shares by the Corporation which, by reducing the number of Common Shares outstanding, increases the proportional number of shares beneficially owned by such Person together with all Affiliates of such Person; provided that if (1) a Person would be or become an Acquiring Person (but for the operation of this subclause (i)) as a result of the acquisition of Common Shares by the Corporation, and (2) after such share acquisition by the Corporation, such Person, or an Affiliate of such Person, becomes the Beneficial Owner of any additional Common Shares, then such Person shall be deemed an Acquiring Person; (ii) if the Board of Directors determines in good faith that a Person who would otherwise be an “Acquiring Person” has become such inadvertently, and such Person (A) does not attempt to exercise any control over the business affairs or management of the Corporation, including by means of a proxy solicitation, and (B) is able to rescind a sufficient number of Common Shares so that such Person not be an “Acquiring Person”, then such Person shall not be deemed an “Acquiring Person” for any purposes of this Agreement; or (iii) if the Board of Directors determines in good faith that a Person who would otherwise be an “Acquiring Person” has become such without materially adversely impacting the Corporation’s tax or NOL position or without exceeding the change of ownership limits contained in Section 382 and other related provisions of US tax law, then such Person shall not be deemed an “Acquiring Person” for any purposes of this Agreement. View More