exv10w8



 





Exhibit 10.8




ARCSIGHT, INC.




2007 Employee Stock Purchase Plan




     1. Establishment of Plan. ArcSight, Inc. (the “Company”) proposes to grant options for
purchase of the Company’s Common Stock to eligible employees of the Company and its Participating
Corporations (as hereinafter defined) pursuant to this Employee Stock Purchase Plan (this “Plan”).
For purposes of this Plan, “Parent” and “Subsidiary” shall have the same meanings as “parent
corporation” and “subsidiary corporation” in Sections 424(e) and 424(f), respectively, of the
Internal Revenue Code of 1986, as amended (the “Code”), and “Corporate Group” shall refer
collectively to the Company and all its Parents and Subsidiaries. “Participating Corporations” are
the Company and any Parents or Subsidiaries that the Board of Directors of the Company (the
“Board”) designates from time to time as corporations that shall participate in this Plan. The
Company intends this Plan to qualify as an “employee stock purchase plan” under Section 423 of the
Code (including any amendments to or replacements of such Section), and this Plan shall be so
construed. Any term not expressly defined in this Plan but defined for purposes of Section 423 of
the Code shall have the same definition therein. A total of 1,000,000 shares of the Company’s
Common Stock is reserved for issuance under this Plan. In addition, on January 1 of each of 2009
through 2016, the aggregate number of shares of the Company’s Common Stock reserved for issuance
under the Plan shall be increased automatically by the number of shares equal to one percent (1%)
of the total number of outstanding shares of the Company Common Stock on the immediately preceding
December 31 (rounded down to the nearest whole share); provided, that the Board or the
Committee may in its sole discretion reduce the amount of the increase in any particular year; and,
provided further, that the aggregate number of shares issued over the term of this Plan
shall not exceed 20,000,000 shares of Common Stock. The number of shares reserved for issuance
under this Plan and the maximum number of shares that may be issued under this Plan shall be
subject to adjustments effected in accordance with Section 14 of this Plan.



     2. Purpose. The purpose of this Plan is to provide eligible employees of the Company and
Participating Corporations with a means of acquiring an equity interest in the Company through
payroll deductions, to enhance such employees’ sense of participation in the affairs of the Company
and Participating Corporations, and to provide an incentive for continued employment.



     3. Administration. This Plan shall be administered by the Compensation Committee of the Board
or by the Board (either referred to herein as the “Committee”). Subject to the provisions of this
Plan and the limitations of Section 423 of the Code or any successor provision in the Code, all
questions of interpretation or application of this Plan shall be determined by the Committee and
its decisions shall be final and binding upon all Participants. Members of the Committee shall
receive no compensation for their services in connection with the administration of this Plan,
other than standard fees as established from time to time by the Board for services rendered by
Board members serving on Board committees. All expenses incurred in connection with the
administration of this Plan shall be paid by the Company.



     4. Eligibility. Any employee of the Company or the Participating Corporations is eligible to
participate in an Offering Period (as hereinafter defined) under this Plan except the following:



          (a) employees who are customarily employed for twenty (20) hours or less per week;




          (b) employees who are customarily employed for five (5) months or less in a calendar year;




 









 








          (c) employees who, together with any other person whose stock would be attributed to such
employee pursuant to Section 424(d) of the Code, own stock or hold options to purchase stock
possessing five percent (5%) or more of the total combined voting power or value of all classes of
stock of the Company or any of its Participating Corporations or who, as a result of being granted
an option under this Plan with respect to such Offering Period, would own stock or hold options to
purchase stock possessing five percent (5%) or more of the total combined voting power or value of
all classes of stock of the Company or any of its Participating Corporations;




          (d) employees who do not meet any other eligibility requirements that the Committee may choose
to impose (within the limits permitted by the Code); and




          (e) individuals who provide services to the Company or any of its Participating Corporations
as independent contractors who are reclassified as common law employees for any reason
except for federal income and employment tax purposes.




     5. Offering Dates.



          (a) The offering periods of this Plan (each, an “Offering Period”) may be of up to twenty-four
(24) months duration and shall commence and end at the times designated by the Committee. Each
Offering Period may consist of up to five (5) purchase periods (individually, a “Purchase Period”)
during which payroll deductions of Participants are accumulated under this Plan.




          (b) The initial Offering Period shall commence on the date on which the Registration Statement
covering the initial public offering of shares of the Company’s Common Stock (the “IPO”) is
declared effective by the U.S. Securities and Exchange Commission (the “Effective Date”), and shall
end with the earlier of the next succeeding March 15 or September 15 that first occurs no sooner
than the later of (i) six months after the Effective Date and (ii) in the event that the
underwriters for the IPO extend the lock-up period in connection with the IPO beyond 180 days, the
business day following the final day of such extended lock-up period. The initial Offering Period
shall consist of a single Purchase Period. Thereafter, a six month Offering Period shall commence
on each March 16 and September 16, with each such Offering Period also consisting of a single
six-month Purchase Period.




          (c) The first business day of each Offering Period is referred to as the “Offering Date,”
however, for the initial Offering Period this shall be the Effective Date. The last business day
of each Purchase Period is referred to as the “Purchase Date.” The Committee shall have the power
to change these terms as provided in Section 25 below.




     6. Participation in this Plan.



          (a) Any employee who is an eligible employee determined in accordance with Section 4
immediately prior to the initial Offering Period will be automatically enrolled in the initial
Offering Period under this Plan. With respect to subsequent Offering Periods, any eligible
employee determined in accordance with Section 4 will be eligible to participate in this Plan,
subject to the requirement of Section 6(b) hereof and the other terms and provisions of this Plan.
Eligible employees who meet the eligibility requirements set forth in Section 4 and who are either
automatically enrolled in the initial Offering Period or who elect to participate in the this Plan
pursuant to Section 6(b) are referred to herein as a “Participant” or collectively as
“Participants.”




          (b) Notwithstanding the foregoing, (i) an eligible employee may elect to decrease the number
of shares of Common Stock that such employee would otherwise be permitted to purchase for the
initial Offering Period under the Plan and/or purchase shares of Common Stock for the initial
Offering




2









 







Period through payroll deductions by delivering a subscription agreement to the Company within
thirty (30) days after the filing of an effective registration statement pursuant to Form S-8 and
(ii) the Committee may set a later time for filing the subscription agreement authorizing payroll
deductions for all eligible employees with respect to a given Offering Period. With respect to
Offering Periods after the initial Offering Period, a Participant may elect to participate in this
Plan by submitting a subscription agreement prior to the commencement of the Offering Period (or
such earlier date as the Committee may determine) to which such agreement relates.




          (c) Once an employee becomes a Participant in an Offering Period, then such Participant will
automatically participate in the Offering Period commencing immediately following the last day of
such prior Offering Period unless the Participant withdraws or is deemed to withdraw from this Plan
or terminates further participation in the Offering Period as set forth in Section 11 below. Such
Participant is not required to file any additional subscription agreement in order to continue
participation in this Plan.




     7. Grant of Option on Enrollment. Becoming a Participant with respect to an Offering Period
will constitute the grant (as of the Offering Date) by the Company to such Participant of an option
to purchase on the Purchase Date up to that number of shares of Common Stock of the Company
determined by a fraction, the numerator of which is the amount accumulated in such Participant’s
payroll deduction account during such Purchase Period and the denominator of which is the lower of
(i) eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on
the Offering Date (but in no event less than the par value of a share of the Company’s Common
Stock), or (ii) eighty-five percent (85%) of the fair market value of a share of the Company’s
Common Stock on the Purchase Date (but in no event less than the par value of a share of the
Company’s Common Stock) provided, however, that for the Purchase Period within the initial
Offering Period the numerator shall be fifteen percent (15%) of the Participant’s compensation for
such Purchase Period and provided, further, that the number of shares of the
Company’s Common Stock subject to any option granted pursuant to this Plan shall not exceed the
lesser of (x) the maximum number of shares set by the Committee pursuant to Section 10(b) below
with respect to the applicable Purchase Date, or (y) the maximum number of shares which may be
purchased pursuant to Section 10(a) below with respect to the applicable Purchase Date. The fair
market value of a share of the Company’s Common Stock shall be determined as provided in Section 8
below.



     8. Purchase Price. The purchase price per share at which a share of Common Stock will be sold
in any Offering Period shall be eighty-five percent (85%) of the lesser of:



          (a) The fair market value on the Offering Date; or




          (b) The fair market value on the Purchase Date.




     The term “fair market value” means, as of any date, the value of a share of the Company’s
Common Stock determined as follows:



          (i) if such Common Stock is then listed on a national securities exchange, its closing price
on the date of determination on the principal national securities exchange on which the Common
Stock is listed or admitted to trading as reported in The Wall Street Journal or such other source
as the Committee deems reliable; or




          (ii) if such Common Stock is publicly traded but is not admitted to trading on a national
securities exchange, the average of the closing bid and asked prices on the date of determination
as reported in The Wall Street Journal or such other source as the Committee deems reliable; and




3









 








          (iii) with respect to the initial Offering Period, “fair market value” on the Offering Date
shall be the price at which shares of Common Stock are offered to the public pursuant to the
Registration Statement covering the initial public offering of shares of the Company’s Common
Stock.




     9. Payment of Purchase Price; Payroll Deduction Changes; Share Issuances.



          (a) The purchase price of the shares is accumulated by regular payroll deductions made during
each Offering Period. The deductions are made as a percentage of the Participant’s compensation in
one percent (1%) increments not less than one percent (1%), nor greater than fifteen percent (15%)
or such lower limit set by the Committee. Compensation shall mean all W-2 cash compensation
categorized by the Company as base salary or regular hourly wages, and expressly excluding
commissions, overtime, shift premiums, bonuses and incentive compensation, plus draws against
commissions, provided, however, that for purposes of determining a Participant’s
compensation, any election by such Participant to reduce his or her regular cash remuneration under
Sections 125 or 401(k) of the Code shall be treated as if the Participant did not make such
election. Payroll deductions shall commence on the first payday following the last Purchase Date
(however, with respect to the initial Offering Period the first payday that can reasonably be
accommodated by the Company after both: (i) the Participant’s filing of an authorization for
payroll deductions with the Company; and (ii) the effective date of filing with the U.S. Securities
and Exchange Commission a securities registration statement for the Plan) and shall continue to the
end of the Offering Period unless sooner altered or terminated as provided in this Plan.




          (b) A Participant may decrease the rate of payroll deductions during an Offering Period by
filing with the Company a new authorization for payroll deductions, with the new rate to become
effective for the next payroll period commencing after the Company’s receipt of the authorization
and continuing for the remainder of the Offering Period unless changed as described below. Such
change in the rate of payroll deductions may be made at any time during an Offering Period, but not
more than one (1) decrease may be made effective during any Purchase Period. A Participant may
increase or decrease the rate of payroll deductions for any subsequent Offering Period by filing
with the Company a new authorization for payroll deductions prior to the beginning of such Offering
Period, or such other time period as specified by the Committee.




          (c) A Participant may reduce his or her payroll deduction percentage to zero during an
Offering Period by filing with the Company a request for cessation of payroll deductions. Such
reduction shall be effective beginning with the next payroll period after the Company’s receipt of
the request and no further payroll deductions will be made for the duration of the Offering Period.
Payroll deductions credited to the Participant’s account prior to the effective date of the
request shall be used to purchase shares of Common Stock of the Company in accordance with
Section (e) below. A reduction of the payroll deduction percentage to zero shall be treated as
such Participant’s withdrawal from such Offering Period, and the Plan, effective as of the day
after the next Purchase Date following the filing date of such request with the Company.




          (d) All payroll deductions made for a Participant are credited to his or her account under
this Plan and are deposited with the general funds of the Company. No interest accrues on the
payroll deductions. All payroll deductions received or held by the Company may be used by the
Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll
deductions.




          (e) On each Purchase Date, so long as this Plan remains in effect and provided that the
Participant has not submitted a signed and completed withdrawal form before that date which
notifies the Company that the Participant wishes to withdraw from that Offering Period under this
Plan and have all




4









 







payroll deductions accumulated in the account maintained on behalf of the Participant as of that
date returned to the Participant, the Company shall apply the funds then in the Participant’s
account to the purchase of whole shares of Common Stock reserved under the option granted to such
Participant with respect to the Offering Period to the extent that such option is exercisable on
the Purchase Date. The purchase price per share shall be as specified in Section 8 of this Plan.
Any amount remaining in a Participant’s account on a Purchase Date which is less than the amount
necessary to purchase a full share of the Company’s Common Stock shall be carried forward, without
interest, into the next Purchase Period or Offering Period, as the case may be. In the event that
this Plan has been oversubscribed, all funds not used to purchase shares on the Purchase Date shall
be returned to the Participant, without interest. No Common Stock shall be purchased on a Purchase
Date on behalf of any employee whose participation in this Plan has terminated prior to such
Purchase Date.




          (f) As promptly as practicable after the Purchase Date, the Company shall issue shares for the
Participant’s benefit representing the shares purchased upon exercise of his or her option.




          (g) During a Participant’s lifetime, his or her option to purchase shares hereunder is
exercisable only by him or her. The Participant will have no interest or voting right in shares
covered by his or her option until such option has been exercised.




     10. Limitations on Shares to be Purchased.



          (a) No Participant shall be entitled to purchase stock under any Offering Period at a rate
which, when aggregated with such Participant’s rights to purchase stock, that are also outstanding
in the same calendar year(s) (whether under other Offering Periods or other employee stock purchase
plans of the Corporate Group), exceeds $25,000 in fair market value, determined as of the Offering
Date, (or such other limit as may be imposed by the Code) for each calendar year in which such
Offering Period is in effect (hereinafter the “Maximum Share Amount”). The Company shall
automatically suspend the payroll deductions of any Participant as necessary to enforce such limit
provided that when the Company automatically resumes such payroll deductions, the Company must
apply the rate in effect immediately prior to such suspension.




          (b) The Committee may, in its sole discretion, set a lower maximum number of shares which may
be purchased by any Participant during any Offering Period than that determined under Section 10(a)
above, which shall then be the Maximum Share Amount for subsequent Offering Periods. If a new
Maximum Share Amount is set, then all Participants must be notified of such Maximum Share Amount
prior to the commencement of the next Offering Period for which it is to be effective. The Maximum
Share Amount shall continue to apply with respect to all succeeding Offering Periods unless revised
by the Committee as set forth above.




          (c) If the number of shares to be purchased on a Purchase Date by all Participants exceeds the
number of shares then available for issuance under this Plan, then the Company will make a pro rata
allocation of the remaining shares in as uniform a manner as shall be reasonably practicable and as
the Committee shall determine to be equitable. In such event, the Company shall give written
notice of such reduction of the number of shares to be purchased under a Participant’s option to
each Participant affected.




          (d) Any payroll deductions accumulated in a Participant’s account which are not used to
purchase stock due to the limitations in this Section 10, and not covered by Section 9(e), shall be
returned to the Participant as soon as practicable after the end of the applicable Purchase Period,
without interest.




5









 








     11. Withdrawal.



          (a) Each Participant may withdraw from an Offering Period under this Plan by signing and
delivering to the Company a written notice to that effect on a form provided for such purpose by
the Company. Such withdrawal may be elected at any time prior to the end of an Offering Period, or
such other time period as specified by the Committee.




          (b) Upon withdrawal from this Plan, the accumulated payroll deductions shall be returned to
the withdrawn Participant, without interest, and his or her interest in this Plan shall terminate.
In the event a Participant voluntarily elects to withdraw from this Plan, he or she may not resume
his or her participation in this Plan during the same Offering Period, but he or she may
participate in any Offering Period under this Plan which commences on a date subsequent to such
withdrawal by filing a new authorization for payroll deductions in the same manner as set forth in
Section 6 above for initial participation in this Plan.




     12. Termination of Employment. Termination of a Participant’s employment for any reason,
including retirement, death, disability, or the failure of a Participant to remain an eligible
employee of the Company or of a Participating Corporation, immediately terminates his or her
participation in this Plan. In such event, accumulated payroll deductions credited to the
Participant’s account will be returned to him or her or, in the case of his or her death, to his or
her legal representative, without interest. For purposes of this Section 12, an employee will not
be deemed to have terminated employment or failed to remain in the continuous employ of the Company
or of a Participating Corporation in the case of sick leave, military leave, or any other leave of
absence approved by the Company; provided that such leave is for a period of not more than
ninety (90) days or reemployment upon the expiration of such leave is guaranteed by contract or
statute.



     13. Return of Payroll Deductions. In the event a Participant’s interest in this Plan is
terminated by withdrawal, termination of employment or otherwise, or in the event this Plan is
terminated by the Board, the Company shall deliver to the Participant all accumulated payroll
deductions credited to such Participant’s account. No interest shall accrue on the payroll
deductions of a Participant in this Plan.



     14. Capital Changes. In the event that any dividend or other distribution (whether in the
form of cash, Common Stock, other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Common Stock or other securities of the Company, or other change in the
corporate structure of the Company affecting the Common Stock the Committee shall make such
adjustment in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, including without limitation, the number and class of
Common Stock which may be delivered under the Plan, the purchase price per share and the number of
shares of Common Stock covered by each option under the Plan which has not yet been exercised, and
the numerical limits of Sections 1 and 10 shall be proportionately adjusted.



     15. Nonassignability. Neither payroll deductions credited to a Participant’s account nor any
rights with regard to the exercise of an option or to receive shares under this Plan may be
assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of
descent and distribution or as provided in Section 22 below) by the Participant. Any such attempt
at assignment, transfer, pledge or other disposition shall be void and without effect.



     16. Reports. Individual accounts will be maintained for each Participant in this Plan. Each
Participant shall receive promptly after the end of each Purchase Period a report of his or her
account setting forth the total payroll deductions accumulated, the number of shares purchased, the
per share price



6









 




thereof and the remaining cash balance, if any, carried forward to the next Purchase Period or
Offering Period, as the case may be.




     17. Notice of Disposition. Each Participant shall notify the Company in writing if the
Participant disposes of any of the shares purchased in any Offering Period pursuant to this Plan if
such disposition occurs within two (2) years from the Offering Date or within one (1) year from the
Purchase Date on which such shares were purchased (the “Notice Period”). The Company may, at any
time during the Notice Period, place a legend or legends on any certificate representing shares
acquired pursuant to this Plan requesting the Company’s transfer agent to notify the Company of any
transfer of the shares. The obligation of the Participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.



     18. No Rights to Continued Employment. Neither this Plan nor the grant of any option
hereunder shall confer any right on any employee to remain in the employ of the Company or any
Participating Corporation, or restrict the right of the Company or any Participating Corporation to
terminate such employee’s employment.



     19. Equal Rights And Privileges. All eligible employees shall have equal rights and
privileges with respect to this Plan so that this Plan qualifies as an “employee stock purchase
plan” within the meaning of Section 423 or any successor provision of the Code and the related
regulations. Any provision of this Plan which is inconsistent with Section 423 or any successor
provision of the Code shall, without further act or amendment by the Company, the Committee or the
Board, be reformed to comply with the requirements of Section 423. This Section 19 shall take
precedence over all other provisions in this Plan.



     20. Notices. All notices or other communications by a Participant to the Company under or in
connection with this Plan shall be deemed to have been duly given when received in the form
specified by the Company at the location, or by the person, designated by the Company for the
receipt thereof.



     21. Term; Stockholder Approval. This Plan will become effective on the Effective Date. This
Plan shall be approved by the stockholders of the Company, in any manner permitted by applicable
corporate law, within twelve (12) months before or after the date this Plan is adopted by the
Board. No purchase of shares that are subject to such stockholder approval before becoming
available under this Plan shall occur prior to stockholder approval of such shares and the Board or
Committee may delay any Purchase Date and postpone the commencement of any Offering Period
subsequent to such Purchase Date as deemed necessary or desirable to obtain such approval (provided
that if a Purchase Date would occur more than twenty-four (24) months after commencement of the
Offering Period to which it relates, then such Purchase Date shall not occur and instead such
Offering Period shall terminate without the purchase of such shares and Participants in such
Offering Period shall be refunded their contributions without interest). This Plan shall continue
until the earlier to occur of (a) termination of this Plan by the Board (which termination may be
effected by the Board at any time pursuant to Section 25 below), (b) issuance of all of the shares
of Common Stock reserved for issuance under this Plan, or (c) the tenth anniversary of the first
Purchase Date under the Plan.



     22. Designation of Beneficiary.



          (a) A Participant may file a written designation of a beneficiary who is to receive any shares
and cash, if any, from the Participant’s account under this Plan in the event of such Participant’s
death subsequent to the end of a Purchase Period but prior to delivery to him of such shares and
cash. In addition, a Participant may file a written designation of a beneficiary who is to receive
any cash from the Participant’s account under this Plan in the event of such Participant’s death
prior to a Purchase Date.




7









 








          (b) Such designation of beneficiary may be changed by the Participant at any time by written
notice. In the event of the death of a Participant and in the absence of a beneficiary validly
designated under this Plan who is living at the time of such Participant’s death, the Company shall
deliver such shares or cash to the executor or administrator of the estate of the Participant, or
if no such executor or administrator has been appointed (to the knowledge of the Company), the
Company, in its discretion, may deliver such shares or cash to the spouse or to any one or more
dependents or relatives of the Participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.




     23. Conditions Upon Issuance of Shares; Limitation on Sale of Shares. Shares shall not be
issued with respect to an option unless the exercise of such option and the issuance and delivery
of such shares pursuant thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements of any stock
exchange or automated quotation system upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such compliance.



     24. Applicable Law. The Plan shall be governed by the substantive laws (excluding the
conflict of laws rules) of the State of California.



     25. Amendment or Termination. The Committee, in its sole discretion, may amend, suspend, or
terminate the Plan, or any part thereof, at any time and for any reason. If the Plan is terminated,
the Committee, in its discretion, may elect to terminate all outstanding Offering Periods either
immediately or upon completion of the purchase of shares of Common Stock on the next Purchase Date
(which may be sooner than originally scheduled, if determined by the Committee in its discretion),
or may elect to permit Offering Periods to expire in accordance with their terms (and subject to
any adjustment pursuant to Section 14). If an Offering Period is terminated prior to its
previously-scheduled expiration, all amounts then credited to Participants’ accounts for such
Offering Period, which have not been used to purchase shares of the Company’s Common Stock, shall
be returned to those Participants (without interest thereon, except as otherwise required under
local laws) as soon as administratively practicable. Further, the Committee will be entitled to
change the Offering Periods, limit the frequency and/or number of changes in the amount withheld
during an Offering Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by
a Participant in order to adjust for delays or mistakes in the administration of the Plan,
establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of the Company’s Common Stock for each Participant
properly correspond with amounts withheld from the Participant’s base salary or regular hourly
wages, and establish such other limitations or procedures as the Committee determines in its sole
discretion advisable which are consistent with the Plan. Such actions will not require stockholder
approval or the consent of any Participants. However, no amendment shall be made without approval
of the stockholders of the Company (obtained in accordance with Section 21 above) within twelve
(12) months of the adoption of such amendment (or earlier if required by Section 21) if such
amendment would: (a) increase the number of shares that may be issued under this Plan; or (b)
change the designation of the employees (or class of employees) eligible for participation in this
Plan.



     26. Corporate Transactions.



          (a) In the event of a Corporate Transaction (as defined below), each outstanding right to
purchase Company Common Stock will be assumed or an equivalent option substituted by the successor
corporation or a parent or a subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the purchase right, the Offering Period
with




8









 







respect to which such purchase right relates will be shortened by setting a new Purchase Date (the
“New Purchase Date”) and will end on the New Purchase Date. The New Purchase Date shall occur on
or prior to the consummation of the Corporate Transaction, and the Plan shall terminate on the
effective Date of such Corporate Transaction.




          (b) “Corporate Transaction” means the occurrence of any of the following events: (i) any
“person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) or “group” (two or
more persons acting as a partnership, limited partnership, syndicate or other group for the purpose
of acquiring, holding, or disposing of the applicable securities referred to herein) becomes the
“beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing fifty percent (50%) or more of the total voting power
represented by the Company’s then-outstanding voting securities; (ii) the consummation of the sale
or other disposition by the Company of all or substantially all of the Company’s assets; (iii) the
consummation of a merger, reorganization, consolidation or similar transaction or series of related
transactions of the Company with any other corporation, other than a merger, reorganization,
consolidation or similar transaction (or series of related transactions) which would result in the
voting securities of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of the surviving
entity or its parent) at least a majority of the total voting power represented by the voting
securities of the Company or such surviving entity or its parent outstanding immediately after such
merger, reorganization, consolidation or similar transaction (or series of related transactions) or
(iv) any other transaction which qualifies as a “corporate transaction” under Section 424(a) of the
Code wherein the stockholders of the Company give up all of their equity interest in the Company
(except for the acquisition, sale or transfer of all or substantially all of the outstanding shares
of the Company).





9