Common use of Maximum Investment Clause in Contracts

Maximum Investment. (a) Notwithstanding any other provision, the Parties agree that Glencore shall not be required or permitted to subscribe for any Rights Offering Shares and/or Standby Shares pursuant to its Basic Subscription Right, Additional Subscription Privilege and/or Standby Commitment if the subscription for such Shares would result in the value of Glencore’s aggregate subscription under the Rights Offering having a fair market value greater than the result of: (x) 24.99% of PolyMet’s Market Capitalization as of the date of this Agreement; less (y) the sum of: (A) the Standby Fee; and (B) the fair market value of all other transactions contemplated by the Rights Offering and related transaction in so far as they relate to Glencore (other than the Loan) as determined by the Board acting reasonably (the "Market Capitalization Limit") such amount being US$53,063,160. If the fair market value of the subject matter of, or the fair market value of the consideration, for the transactions contemplated by this Agreement exceeds 25% of PolyMet’s Market Capitalization as of the date of this Agreement the Parties shall endeavour in good faith negotiations to amend this Agreement and any related document which amendments the economic effect of which would come as close to as possible of the intent of the Parties underlying this Agreement and applicable related documents. (b) Notwithstanding anything to the contrary in this Agreement, Glencore shall not be required or permitted to subscribe for any Rights Offering Shares and/or Standby Shares pursuant to its Basic Subscription Right, Additional Subscription Privilege and/or Standby Commitment to the extent that any such subscription for any such Shares would result in Glencore's ultimate parent entity (within the meaning of the HSR Act) holding (within the meaning of the HSR Act) more than 49.99% of PolyMet's then outstanding Shares (with the Market Capitalization Limit the "Maximum Investment"). For the avoidance of doubt, the foregoing shall not be construed to limit any right and/or obligation of Glencore hereunder to subscribe for any Rights Offering Shares and/or Standby Shares to the extent that any such subscription for any such Shares would not result in Glencore's ultimate parent entity (within the meaning of the HSR Act) holding (within the meaning of the HSR Act) more than 49.99% of PolyMet's then outstanding Shares. If, through Glencore's subscription for the Rights Offering Shares and/or Standby Shares, Glencore's ultimate parent entity would hold more than 49.99% of PolyMet’s outstanding Shares, the Parties shall endeavour in good faith negotiations to amend this Agreement and any related document which amendments the economic effect of which would come as close to as possible of the intent of the Parties underlying this Agreement and applicable related documents.