BELOW, THE
OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING:
(A)
ANY SEC PERSON BECOMES THE BENEFICIAL OWNER OF 50% OR MORE OF THE
COMMON STOCK OR OF VOTING SECURITIES REPRESENTING 50% OR MORE OF THE COMBINED
VOTING POWER OF ALL VOTING SECURITIES OF THE COMPANY; OR
(B)
THE INCUMBENT DIRECTORS (DETERMINED USING THE AGREEMENT DATE AS
THE BASELINE DATE) CEASE FOR ANY REASON TO CONSTITUTE AT LEAST A MAJORITY OF THE
BOARD; OR
2
(C)
CONSUMMATION OF A MERGER, REORGANIZATION, CONSOLIDATION, OR
SIMILAR TRANSACTION (ANY OF THE FOREGOING, A "REORGANIZATION TRANSACTION") WHERE
THE CONTINUITY OF OWNERSHIP IS NOT MORE THAN 50%; OR
(D)
CONSUMMATION OF A PLAN OR AGREEMENT FOR THE SALE OR OTHER
DISPOSITION OF ALL OR SUBSTANTIALLY ALL OF THE CONSOLIDATED ASSETS OF THE
COMPANY; OR
(E)
APPROVAL BY THE COMPANY'S STOCKHOLDERS OF A PLAN OF LIQUIDATION OF
THE COMPANY.
A Change of Control shall not occur with respect to Executive if, in advance of
such event, Executive agrees in writing that such event shall not constitute a
Change of Control.
1.13.
"CHANGE OF CONTROL DATE" MEANS THE DATE ON WHICH A CHANGE OF
CONTROL FIRST OCCURS DURING THE AGREEMENT TERM.
1.14.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
REFERENCES TO PARTICULAR PROVISIONS OF THE CODE INCLUDE REFERENCES TO SUCCESSOR
PROVISIONS.
1.15.
"COMMON STOCK" MEANS THE COMMON STOCK OF THE COMPANY.
1.16.
"COMPANY" HAS THE MEANING DEFINED FOR THAT TERM IN THE INTRODUCTORY
PARAGRAPH TO THIS AGREEMENT AND INCLUDES ANY SUCCESSOR TO A COMPANY.
1.17.
"COMPETITIVE BUSINESS" MEANS AS OF ANY DATE (INCLUDING DURING
SEVERANCE PERIOD) ANY PERSON (AND ANY BRANCH, OFFICE OR OPERATION THEREOF) THAT
ENGAGES IN, OR PROPOSES TO ENGAGE IN:
(A)
THE DEVELOPMENT AND DEPLOYMENT OF ENTERPRISE APPLICATION
INTEGRATION (EAI) AND COMPOSITE APPLICATIONS, INCLUDING BUT NOT LIMITED TO IT
CONVERGENCE, BUSINESS PROCESS MANAGEMENT, SINGLE VIEW APPLICATIONS,
MULTI-CHANNEL INTEGRATION, AND BUSINESS ACTIVITY MONITORING; OR
(B)
ANY OTHER BUSINESS THAT AS OF SUCH DATE IS A DIRECT AND MATERIAL
COMPETITOR OF A COMPANY AND ITS AFFILIATES TO THE EXTENT THAT PRIOR TO THE DATE
OF TERMINATION ANY OF THE COMPANY OR ITS AFFILIATES ENGAGED AT ANY TIME WITHIN
12 MONTHS IN OR HAD UNDER ACTIVE CONSIDERATION A PROPOSAL TO ENGAGE IN SUCH
COMPETITIVE BUSINESS;
and that is located anywhere in the United States or anywhere outside of the
United States where such Company or its Affiliates is then engaged in, or has
under active consideration a proposal to engage in, any of such activities.
1.18.
"CONTINUITY OF OWNERSHIP" OF A STATED PERCENTAGE MEANS THE PERSONS
WHO WERE THE DIRECT OR INDIRECT OWNERS OF THE OUTSTANDING COMMON STOCK AND
VOTING SECURITIES OF THE COMPANY IMMEDIATELY BEFORE A REORGANIZATION TRANSACTION
BECAME, IMMEDIATELY AFTER THE CONSUMMATION OF THE REORGANIZATION TRANSACTION,
THE DIRECT OR INDIRECT OWNERS OF BOTH THE STATED PERCENTAGE OF THE
THEN-OUTSTANDING COMMON STOCK OF THE SURVIVING CORPORATION AND VOTING SECURITIES
REPRESENTING THE STATED PERCENTAGE OF THE COMBINED VOTING POWER OF THE
THEN-OUTSTANDING VOTING SECURITIES OF THE SURVIVING CORPORATION, IN
SUBSTANTIALLY THE SAME