PLAN SPONSORED OR MAINTAINED BY THE COMPANY OR ANY MAJORITY-OWNED
SUBSIDIARY,
(C)
ANY UNDERWRITER TEMPORARILY HOLDING
SECURITIES PURSUANT TO AN OFFERING OF SUCH SECURITIES, OR
(D)
ANY PERSON PURSUANT TO A NON-QUALIFYING
TRANSACTION (AS DEFINED BELOW);
(II)
INDIVIDUALS WHO, ON THE EFFECTIVE DATE,
CONSTITUTE THE BOARD (THE "INCUMBENT DIRECTORS") CEASE FOR ANY REASON TO
CONSTITUTE AT LEAST A MAJORITY OF THE BOARD, PROVIDED THAT ANY PERSON BECOMING A
DIRECTOR SUBSEQUENT TO THE EFFECTIVE DATE WHOSE ELECTION OR NOMINATION FOR
ELECTION WAS APPROVED BY A VOTE OF AT LEAST TWO-THIRDS OF THE INCUMBENT
DIRECTORS THEN ON THE BOARD (EITHER BY A SPECIFIC VOTE OR BY APPROVAL OF THE
PROXY STATEMENT OF THE COMPANY IN WHICH SUCH PERSON IS NAMED AS A NOMINEE FOR
DIRECTOR, WITHOUT OBJECTION TO SUCH NOMINATION) SHALL BE AN INCUMBENT DIRECTOR.
(III)
THE CONSUMMATION OF A MERGER, CONSOLIDATION,
STATUTORY SHARE EXCHANGE OR SIMILAR FORM OF CORPORATE TRANSACTION INVOLVING THE
COMPANY OR ANY OF ITS SUBSIDIARIES THAT REQUIRES THE APPROVAL OF THE COMPANY'S
STOCKHOLDERS, WHETHER FOR SUCH TRANSACTION OR THE ISSUANCE OF SECURITIES IN THE
TRANSACTION (A "BUSINESS COMBINATION"), UNLESS IMMEDIATELY FOLLOWING SUCH
BUSINESS COMBINATION:
(A)
50% OR MORE 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 COMPANY VOTING SECURITIES THAT WERE OUTSTANDING IMMEDIATELY
PRIOR TO SUCH BUSINESS COMBINATION (OR, IF APPLICABLE, IS REPRESENTED BY SHARES
INTO WHICH SUCH COMPANY 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 COMPANY 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 50% 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
8
(C)
AT LEAST A MAJORITY 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"); or
(iv)
consummation of the sale of all or
substantially all of the Company's assets or stockholder approval of a
liquidation or dissolution of the Company, unless the voting common equity
interests of the acquirer of such assets or an ongoing entity (other than a
liquidating