50% OR MORE OF
CORPORATION VOTING SECURITIES BY SUCH PERSON;
(III)
THE CONSUMMATION OF A MERGER, CONSOLIDATION, STATUTORY SHARE
EXCHANGE, REORGANIZATION OR SIMILAR FORM OF CORPORATE TRANSACTION INVOLVING THE
CORPORATION OR ANY OF ITS SUBSIDIARIES THAT REQUIRES THE APPROVAL OF THE
CORPORATION'S STOCKHOLDERS, WHETHER FOR SUCH TRANSACTION OR THE ISSUANCE OF
SECURITIES IN THE TRANSACTION (A "BUSINESS COMBINATION"), UNLESS IMMEDIATELY
FOLLOWING SUCH BUSINESS COMBINATION:
(A) MORE THAN 50% OF THE TOTAL VOTING
POWER OF (X) THE CORPORATION RESULTING FROM SUCH BUSINESS COMBINATION (THE
"SURVIVING CORPORATION"), OR (Y) IF APPLICABLE, THE ULTIMATE PARENT CORPORATION
THAT DIRECTLY OR INDIRECTLY HAS BENEFICIAL OWNERSHIP OF 100% OF THE VOTING
SECURITIES ELIGIBLE TO ELECT DIRECTORS OF THE SURVIVING CORPORATION (THE "PARENT
CORPORATION"), IS REPRESENTED BY CORPORATION VOTING SECURITIES THAT WERE
OUTSTANDING IMMEDIATELY PRIOR TO SUCH BUSINESS COMBINATION (OR, IF APPLICABLE,
IS REPRESENTED BY SHARES INTO WHICH SUCH CORPORATION VOTING SECURITIES WERE
CONVERTED PURSUANT TO SUCH BUSINESS COMBINATION), AND SUCH VOTING POWER AMONG
THE HOLDERS THEREOF IS IN SUBSTANTIALLY THE SAME PROPORTION AS THE VOTING POWER
OF SUCH CORPORATION VOTING SECURITIES AMONG THE HOLDERS THEREOF IMMEDIATELY
PRIOR TO THE BUSINESS COMBINATION, (B) NO PERSON (OTHER THAN ANY EMPLOYEE
BENEFIT PLAN (OR RELATED TRUST) SPONSORED OR MAINTAINED BY THE SURVIVING
CORPORATION OR THE PARENT CORPORATION), IS OR BECOMES THE BENEFICIAL OWNER,
DIRECTLY OR INDIRECTLY, OF 35% OR MORE OF THE TOTAL VOTING POWER OF THE
OUTSTANDING VOTING SECURITIES ELIGIBLE TO ELECT DIRECTORS OF THE PARENT
CORPORATION (OR, IF THERE IS NO PARENT CORPORATION, THE SURVIVING CORPORATION)
AND (C) AT LEAST HALF OF THE MEMBERS OF THE BOARD OF DIRECTORS OF THE PARENT
CORPORATION (OR, IF THERE IS NO PARENT CORPORATION, THE SURVIVING CORPORATION)
FOLLOWING THE CONSUMMATION OF THE BUSINESS COMBINATION WERE INCUMBENT DIRECTORS
AT THE TIME OF THE BOARD'S APPROVAL OF THE EXECUTION OF THE INITIAL AGREEMENT
PROVIDING FOR SUCH BUSINESS COMBINATION (ANY BUSINESS COMBINATION WHICH
SATISFIES ALL OF THE CRITERIA SPECIFIED IN (A), (B) AND (C) ABOVE SHALL BE
DEEMED TO BE A "NON-QUALIFYING TRANSACTION");
(IV)
THE STOCKHOLDERS OF THE CORPORATION APPROVE A PLAN OF COMPLETE
LIQUIDATION OR DISSOLUTION OF THE CORPORATION;
(V)
THE CONSUMMATION OF A SALE OF ALL OR SUBSTANTIALLY ALL OF THE
CORPORATION'S ASSETS; OR
(VI)
THE OCCURRENCE OF ANY OTHER EVENT THAT THE BOARD DETERMINES BY A
DULY APPROVED RESOLUTION CONSTITUTES A CHANGE IN CONTROL.
(B)
THE TERM "CORPORATE STATUS" SHALL MEAN THE STATUS OF A PERSON WHO
IS OR WAS, OR HAS AGREED TO BECOME, A DIRECTOR OR OFFICER OF THE CORPORATION, OR
IS OR WAS SERVING, OR HAS AGREED TO SERVE, AT THE REQUEST OF THE CORPORATION, AS
A DIRECTOR, OFFICER, FIDUCIARY, PARTNER, TRUSTEE, MEMBER, EMPLOYEE OR AGENT OF,
OR IN A SIMILAR CAPACITY WITH, ANOTHER CORPORATION, PARTNERSHIP, JOINT VENTURE,
TRUST, LIMITED LIABILITY COMPANY OR OTHER ENTERPRISE.
2
(C)
THE TERM "EXPENSES" SHALL INCLUDE, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES, RETAINERS, COURT COSTS, TRANSCRIPT COSTS, FEES AND EXPENSES OF
EXPERTS, TRAVEL EXPENSES, DUPLICATING COSTS, PRINTING AND BINDING COSTS,
TELEPHONE CHARGES, POSTAGE, DELIVERY SERVICE FEES AND OTHER DISBURSEMENTS OR
EXPENSES OF