Beneficial owner, when used with respect to any shares, means a person that: 1. Individually or with or through any of its affiliates or associates, possesses: (a) Voting power over the shares, including, without limitation, the power to vote, or to direct the voting of, the shares; or (b) Investment power over the shares, including, without limitation, the power to dispose, or to direct the disposition, of the shares, under any agreement, arrangement or understanding, whether or not in writing, but a person is not considered the beneficial owner of any shares under this subsection if the power to vote, or to direct the voting of, the shares arises solely from a revocable proxy or consent given in response to a solicitation made in accordance with the applicable regulations under the Securities Exchange Act and is not then reportable on a Schedule 13D under the Securities Exchange Act or any comparable or successor report; 2. Individually or with or through any of its affiliates or associates, has the right to acquire the shares, whether the right is exercisable immediately or only after the passage of time, under any agreement, arrangement or understanding, whether or not in writing, or upon the exercise of rights to convert or exchange, warrants or options, or otherwise, but a person is not considered the beneficial owner of shares tendered under an offer for a tender or exchange made by the person or any of the persons affiliates or associates until the tendered shares are accepted for purchase or exchange; or 3. Has any agreement, arrangement or understanding, whether or not in writing, for the purpose of acquiring, holding, voting, except voting under a revocable proxy or consent as described in subsection 1, or disposing of the shares with any other person who beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, the shares.
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