Securities”); provided, however, that for purposes of this subsection (A), anyacquisition directly from the Company shall not constitute a Change in Control; or     (B) such time as the Continuing Directors (as defined below) do not constitute amajority of theBoard (or, if applicable, the Board of Directors of a successor corporation to theCompany), wherethe term “Continuing Director” means at any date a member of the Board (x) who wasa member ofthe Board on the date of the initial adoption of this Plan by the Board or (y) whowas nominated orelected subsequent to such date by at least a majority of the directors who wereContinuing Directorsat the time of such nomination or election or whose election to the Board wasrecommended orendorsed by at least a majority of the directors who were Continuing Directors atthe time of suchnomination or election; provided, however, that there shall be excluded from thisclause (y) anyindividual whose initial assumption of office occurred as a result of an actual orthreatened electioncontest with respect to the election or removal of directors or other actual orthreatened solicitation ofproxies or consents, by or on behalf of a person other than the Board; or     (C) the consummation of a merger, consolidation, reorganization, recapitalizationor shareexchange involving the Company or a sale or other disposition of all orsubstantially all of the assetsof the Company (a “Business Combination”), unless, immediately following suchBusinessCombination, each of the following two conditions is satisfied: (x) all orsubstantially all of theindividuals and entities who were the beneficial owners of the Outstanding CompanyCommon Stockand Outstanding Company Voting Securities immediately prior to such BusinessCombinationbeneficially own, directly or indirectly, more than 50% of thethen-outstanding shares of commonstock and the combined voting power of the then-outstanding securities entitled tovote generally inthe election of directors, respectively, of the resulting or acquiring corporationin such BusinessCombination (which shall include, without limitation, a corporation which as a result of suchtransaction owns the Company or substantially all of the Company’s assets eitherdirectly or through one or more subsidiaries) (such resulting or acquiring corporationis referred to herein as the “Acquiring Corporation”) in substantially the sameproportions as their ownership of the Outstanding Company Common Stock and OutstandingCompany Voting Securities, respectively, immediately prior to such Business Combinationand (y) no Person (excluding any employee benefit plan (or related trust) maintained orsponsored by the Company or by the Acquiring Corporation) beneficially owns, directly orindirectly’, 40% or more of the then-outstanding shares of common stock of the AcquiringCorporation, or of the combined voting power of the then-outstanding securities of suchcorporation entitled to vote generally in the election of directors (except to theextent that such ownership existed prior to the Business Combination); or     (D) the liquidation or dissolution of the Company.”     Notwithstanding anything to the contrary, the following acquisitions shall notconstitute a Change in Control event: (A) any acquisition directly from the Company(excluding an acquisition pursuant to the exercise, conversion or exchange of anysecurity exercisable for, convertible into or exchangeable for common stock or votingsecurities of the Company, unless the Person exercising, converting or exchanging suchsecurity acquired such security directly from the Company or an underwriter or agent ofthe Company), (B) any acquisition by any employee benefit plan (or related trust)sponsored or maintained by the Company or any corporation controlled by the Company, (C)any acquisition by any corporation pursuant to a Business Combination (as defined below)which complies with clauses (x) and (y) of subsection (iii) of this definition or (D)any acquisition by ClearBlue Technologies, Inc. or its affiliates, including AtlanticInvestors, LLC, or Waythere, Inc. (each such party is referred to herein as “ClearBlue”)of any shares of common stock.4. Section 7 of the Separation Agreement is hereby amended to add the following Section 7(g):“(g) Section 409A. This Agreement is intended to comply with the provisions ofSection 409A and the Agreement shall, to the extent practicable, be construed inaccordance therewith. Terms defined in the Agreement shall have the meanings givensuch, terms under Section 409A if and to the extent required, in order to comply withSection 409A. No payments to be made under this Agreement may be accelerated ordeferred except as specifically permitted under Section 409A. In the event that theAgreement shall be deemed not to comply with Section 409A, then neither the Company,the Board
 

 
     IN WITNESS HEREOF, the parties hereto have executed this Amendment No. 1 to SeparationAgreement as of the day and year first set forth above.      NAVISITE, INC.