ANNEX B
13d-3
under the Exchange Act (or a successor rule thereto)) of Company Voting Securities immediately
prior to such Reorganization do not immediately thereafter, beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the corporation or other entity resulting
from such Reorganization (including a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Companys assets either directly or through one or more subsidiaries);
(c) Within any twenty-four (24)-month period, individuals who were directors of the Company on the first days of such period (the
Incumbent Directors
) shall cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director subsequent to the first day of such period whose election, or nomination by the Board
for election by the Companys stockholders, was approved by a vote of at least a majority of the Incumbent Directors shall be considered as though such individual were an Incumbent Director, but excluding for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board (including without limitation any settlement thereof);
(d) The approval by the Companys stockholders of the
liquidation or dissolution of the Company other than a liquidation of the Company into any Subsidiary or Affiliate or a liquidation as a result of which Persons who were holders of voting securities of the Company immediately prior to such
liquidation, own, directly or indirectly, more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the entity that holds substantially all of the assets of the Company following such
event; or
(e) The consummation of the sale, transfer or other disposition of all or substantially all of the assets of the Company to one
or more Persons or entities that are not, immediately prior to such sale, transfer or other disposition, Subsidiaries or Affiliates of the Company (a
Sale
);
in each case, provided that, as to Awards subject to Section 409A, such event also constitutes a change in control event within the meaning
of Section 409A. In addition, notwithstanding the foregoing, a Change of Control shall not be deemed to occur if the Company files for bankruptcy, liquidation, or reorganization under the United States Bankruptcy Code or as a result
of any restructuring that occurs as a result of any such proceeding.
Section 2.11
Code
shall mean the Internal Revenue Code of
1986, as amended. Any reference to a specific provision of the Code includes any successor provision and the regulations promulgated under such provision.
Section 2.12
Committee
shall mean the Compensation Committee of the Board, which shall consist of two or more members, each of whom is
a
Non-Employee
Director
within the meaning of Rule
16b-3,
as promulgated under the Exchange Act, and an outside director within the
meaning of Section 162(m).
Section 2.13
Common Stock
shall mean the common stock, par value $0.0001 per share, of the
Company and such other stock or securities into which such common stock is hereafter converted or for which such common stock is exchanged.
Section 2.14
Company
shall have the meaning set forth in Article I.
Section 2.15
Competitive Activity
shall mean a Participants material breach of restrictive covenants relating to noncompetition,
nonsolicitation (of customers or employees), preservation of confidential information, or other covenants having the same or similar scope, included in an Award Agreement or other agreement to which the Participant and the Company or any of its
Subsidiaries or Affiliates is a party.
Section 2.16
Consultant
shall mean any individual or entity who is engaged by the Company
or any of its Subsidiaries or Affiliates to render consulting or advisory services to such entity.
Section 2.17
Corporate Event
shall mean, as determined by the Committee in its sole discretion, any transaction or event described in Section 4.5(a) or any unusual or infrequently occurring or nonrecurring transaction or event affecting the Company, any Subsidiary or
Affiliate of the Company, or the financial statements of the Company or any of its Subsidiaries or Affiliates, or any changes in Applicable Laws, regulations or accounting principles (including, without limitation, a recapitalization of the
Company).
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2018 Proxy Statement
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