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Exhibit 10.1
CABOT CORPORATION
1999 EQUITY INCENTIVE PLAN
1. PURPOSE
The purpose of this 1999 Equity Incentive Plan (the "Plan") is to
advance the interests of Cabot Corporation (the "Company") and its stockholders
by enhancing the Company's ability to (a) attract and retain employees who are
in a position to make significant contributions to the success of the Company
and its subsidiaries; (b) reward employees for such contributions; and (c)
encourage employees to take into account the long-term interests of the Company
and its stockholders through ownership of shares of the Company's common stock
("Stock").
2. ADMINISTRATION
The Plan will be administered by the Compensation Committee or such
other committee (the "Committee") of the Board of Directors of the Company (the
"Board") as the Board may from time to time designate; provided that any
Committee administering the Plan shall consist of at least three directors and
shall not include any employees of the Company. The Committee will have
authority, not inconsistent with the express provisions of the Plan and in
addition to other authority granted under the Plan, to (a) grant awards
("Awards") and determine the terms and conditions of each Award; (b) modify or
waive, on a case by case basis, any term or condition of, or compliance by a
Participant with any obligation to be performed by him or her under, a
previously granted Award; (c) prescribe forms, rules and procedures (which it
may vary from time to time) as appropriate for the administration of the Plan;
and (d) interpret the Plan and decide any questions and settle all controversies
and disputes that may arise in connection with the Plan. Such determinations and
actions of the Committee, and all other determinations and actions of the
Committee made or taken under authority granted by any provision of the Plan,
will be conclusive and will bind all parties.
3. EFFECTIVE DATE AND TERM OF PLAN
The Plan will become effective on the date on which it is approved by
the stockholders of the Company. No Award may be granted under the Plan after
the tenth anniversary of the date on which this Plan was adopted by the Board,
but Awards previously granted may extend beyond that date.
4. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 8.6, the maximum number of
shares of Stock that may be delivered under the Plan will be (a) 3,000,000
shares of Stock; plus (b) any shares of Stock issued under the Plan and
forfeited; plus (c) without duplication for shares counted under the immediately
preceding clause, a number of shares of Stock equal to the number of shares
repurchased by the Company in the open market or otherwise and having an
aggregate repurchase price no greater than the amount of cash proceeds received
by the Company from the sale of shares of Stock under the Plan; plus (d) any
shares of Stock surrendered to the Company in payment of the exercise price of
Options issued under the Plan. However, in no event shall the Company (a)
deliver more than 3,000,000 shares of Stock under the Plan (subject to
adjustment pursuant to Section 8.6) to the officers of the Company, (b) issue
ISO's (as defined in Section 6.2(a)) under the Plan covering more than 3,000,000
shares of Stock, or (c) issue any Award under the Plan if after giving effect to
such Award the aggregate of all outstanding awards under the Plan, the 1996
Equity Incentive Plan, and the Equity Incentive Plan approved by the
stockholders of
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the Company at the 1989 Annual Meeting of Stockholders (i.e., unexercised
Options, unvested Purchase Restricted Stock, or other awards that remain subject
to the restrictions of the Plan or such other plans) would exceed 9.9% of the
total number of shares of Stock at the time outstanding.
Stock delivered under the Plan may be either from authorized but
unissued Stock or from treasury shares.
5. ELIGIBILITY AND PARTICIPATION
Those eligible to receive Awards under the Plan will be key employees
of the Company or any of its subsidiaries ("Employees") who, in the opinion of
the Committee, are in a position to make a significant contribution to the
success of the Company or its subsidiaries. A "subsidiary" for purposes of the
Plan is an entity in which the Company owns, directly or indirectly, (a) equity
interests possessing 40% or more, but less than a majority, of the total
combined voting power of all classes of equity, and which entity the Committee
shall have determined is managed as part of one of the Company's core
businesses, or (b) equity interests possessing a majority of the total combined
voting power of all classes of equity. The Committee will from time to time
select the eligible Employees who are to be granted Awards ("Participants"), but
no Participant shall receive Awards under the Plan covering more than 1,000,000
shares of Stock (subject to adjustment pursuant to Section 8.6).
6. TYPES OF AWARDS
6.1. RESTRICTED STOCK.
(a) Nature of Restricted Stock Award. An Award of Restricted Stock
entitles the recipient to acquire, at such time or times as the Committee may
determine, shares of Stock subject to the restrictions described in paragraph
(d) below ("Restricted Stock") for a consideration which may be either (i) any
amount which is not less than 30% of the fair market value of the Stock at the
time of grant, or (ii) an amount less than 30% of the fair market value of the
Stock at the time of grant if the Committee has expressly determined to grant
the discount in accordance with Section 6.5 or in lieu of a comparable amount of
salary or cash bonus. However, the number of shares issued at less than 30% of
the fair market value in lieu of salary or cash bonus shall be no more than
500,000 shares (subject to adjustment pursuant to Section 8.6).
(b) Payment for Restricted Stock. An Award of Restricted Stock may
permit the Participant to pay some or all of the purchase price thereof, or
withholding taxes to be paid by the Participant in connection therewith, in the
form of a note from the Participant on such terms as the Committee shall
determine. Such terms may include forgiveness of all or a portion of any such
note upon such conditions as the Committee may specify. However, if any portion
of such a note is to be forgiven on the sole condition that the Participant
remain an Employee for a period of time, the portion to be so forgiven shall not
be counted for the purposes of Section 6.1(a) as consideration for such Stock.
(c) Rights as a Stockholder. A Participant who receives Restricted
Stock will have all the rights of a stockholder with respect to the Stock,
including voting and dividend rights, subject to the restrictions described in
paragraph (d) below and any other conditions imposed by the Committee at the
time of grant.
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(d) Restrictions. The restrictions on each grant of Restricted Stock
will lapse at such time or times, and on such conditions, as the Committee may
specify. However, not more than 5% of the shares of Stock subject to the Plan
shall be awarded with a vesting period less than 3 years from the date of grant,
or with no vesting period, or with a vesting schedule that is faster than
ratably over a three year period. Except as otherwise specifically provided by
the Plan or by the Committee in any particular case, until these restrictions
lapse, Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of, except that Restricted Stock may be pledged
as security for the purchase price thereof, or for loans used to fund any or all
of the purchase price thereof or withholding taxes paid in connection with the
purchase thereof. If the Participant ceases to be an Employee before such
restrictions have lapsed, the Company shall have the right to repurchase the
Restricted Stock for the amount of consideration (excluding services) it
received for the Stock plus, if the Committee shall so determine, an amount
equal to the withholding taxes paid in connection with the sale of the Stock, or
for such other consideration as the Committee shall determine, including for no
consideration if no consideration other than services was paid. The Committee
shall not accelerate the time at which the restrictions on all or any part of a
grant of Restricted Stock will lapse, except as the Committee may determine to
be appropriate in connection with a Participant's termination as an Employee.
6.2. OPTIONS.
(a) Nature of Options. An Option is an Award entitling the recipient on
exercise thereof to purchase Stock at a specified exercise price.
Both "incentive stock options," as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and Options that are not
incentive stock options, may be granted under the Plan. Any Option intended to
qualify as an incentive stock option will be referred to in the Plan as an
"ISO". Once an ISO has been granted, no action by the Committee that would cause
the Option to lose its status under the Code as an incentive stock option will
be effective without the consent of the Option holder.
(b) Exercise Price. The exercise price of an Option will be determined
by the Committee, but except as provided in Section 6.5 the Committee shall not
set the exercise price of an Option at less than the fair market value per share
of the Stock at the time the Option is granted unless the Committee expressly
determines to grant the discount in lieu of a comparable amount of salary or
cash bonus.
(c) Duration of Options. The latest date on which an Option may be
exercised will be the tenth anniversary of the date the Option was granted, or
such earlier date as may have been specified by the Committee at the time the
Option was granted.
(d) Exercise of Options. An Option will become exercisable at such time
or times, and on such terms and conditions, as the Committee may specify. The
Committee may at any time accelerate the time at which all or any part of the
Option may be exercised.
Any exercise of an Option must be in writing, signed by the proper
person and delivered or mailed to the Company, accompanied by (1) any documents
required by the Committee and (2) payment in full for the number of shares for
which the Option is exercised.
6.3. APPRECIATION RIGHTS.
(a) Nature of Appreciation Rights. An Appreciation Right is an Award
entitling the recipient on exercise of the Right to receive an amount, in cash
or Stock or a combination thereof (such form to be
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determined by the Committee), determined in whole or in part by reference to
appreciation in Stock value.
An Appreciation Right may be either a standard Stock Appreciation Right
or a Performance Appreciation Right. A Stock Appreciation Right entitles the
Participant to receive, with respect to each share of Stock as to which the
Right is exercised, the excess of (1) the share's fair market value on the date
of exercise, increased if the Committee so provides by the value of dividends on
the Stock, over (2) its fair market value on the date the Right was granted. A
Performance Appreciation Right is a form of Stock Appreciation Right pursuant to
which the amount the recipient is entitled to receive is adjusted upward or
downward under rules established by the Committee to take into account the
performance of the Stock in comparison with the performance of other stocks or
an index of other stocks or to take into account other criteria determined by
the Committee to be appropriate to reflect the true performance of the Stock or
the Company.
Appreciation Rights shall be exercisable at such time or times (not
later than ten years from the date of grant), and on such terms, as the
Committee may specify.
(b) Tandem Appreciation Rights. Appreciation Rights may be granted in
tandem with, or independently of, Options granted under the Plan. The
relationship between an Option and any Tandem Appreciation Rights shall be set
forth in the respective instrument for the Option or the Tandem Appreciation
Right or both.
6.4. PERFORMANCE AWARDS.
(a) Nature of Performance Awards. A Performance Award entitles the
recipient to receive an amount, in cash or Stock or a combination thereof (such
form to be determined by the Committee), based on one or more measures of
performance and/or the attainment of one or more performance goals. Performance
measures or goals may be related to personal performance, corporate performance,
departmental performance or any other category of performance deemed by the
Committee to be important to the success of the Company. The Committee will
determine the performance measures and/or goals, the period or periods during
which performance is to be measured and all other terms and conditions
applicable to the Award. The Committee may in its discretion, in order to
qualify an Award under Section 162(m) of the Code, or for any other reason, seek
Stockholder approval for particular Awards, or a program pursuant to which
Awards were or are to be made, and may make any such Awards subject to such
approval.
(b) Other Awards May be Made Subject to Performance Criteria. The
Committee may, at the time any Award described in this Section 6 is granted,
specify one or more measures of performance and/or the attainment of one or more
performance goals to be used in determining one or more terms of the Award or
which shall be conditions to the Participant's realization of benefits under all
or a portion of the Award.
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6.5. SUBSTITUTE AWARDS.
In connection with any acquisition, the Committee may grant Awards to
persons who become Employees in connection with such acquisition in substitution
for equity incentives held by them in the seller or acquired entity. In such
case the Committee may set the prices and other terms of the substitute Awards
at such amounts and in such manner as may be appropriate to preserve for the
Participants the economic values of the equity incentives for which such Awards
are substitutes, or otherwise to provide such incentives as the Committee may
determine are appropriate. Any substitute Awards granted under the Plan shall
not count toward the share limitations set forth in Section 4, 6.1(a) or 6.1(d).
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. DEATH AND DISABILITY.
If a Participant ceases to be an Employee by reason of death or total
and permanent disability (as determined by the Committee), the following will
apply:
(a) Subject to paragraph (c) below, each Option and
Appreciation Right held by the Participant when his or her employment
ended will immediately become exercisable in full and will continue to
be exercisable until the earlier of (1) the third anniversary of the
date on which his or her employment ended, and (2) the date on which
the Award would have terminated had the Participant remained an
Employee. If the Participant has died, his or her Award may be
exercised within such limits by his or her executor or administrator or
by the person or persons to whom the Award is transferred by will or
the applicable laws of descent and distribution (the Participant's
"legal representative").
(b) Subject to paragraph (c) below, each share of Restricted
Stock held by the Participant when his or her employment ended will
immediately become free of the restrictions.
(c) If when the Participant's employment ended exercise of an
Option or Appreciation Right or lapse of restrictions on Restricted
Stock was subject to performance or other conditions (other than
conditions relating solely to the passage of time and continued
employment, which automatically lapse pursuant to Section 7.1(a) or
(b)) which had not been satisfied at such time, the Committee may
remove or modify such conditions or provide that the Participant will
receive the benefit of the Award if and when the conditions are
subsequently satisfied. If the Committee does not take such action,
however, such Award will terminate as of the date on which the
Participant's employment ended as described above.
(d) Any payment or benefit under a Performance Award to which
the Participant has not become irrevocably entitled will be forfeited
and the Award canceled as of the date on which the Participant's
employment ended, unless otherwise provided in the instrument
evidencing the Award or otherwise agreed to by the Committee.
If a Participant dies after his or her employment has ended but while
an Award held by him or her is still exercisable, his or her legal
representative will be entitled to exercise such Award until the earlier of (1)
the third anniversary of his or her death and (2) the date on which the Award
would have terminated had the Participant remained an Employee.
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7.2. OTHER TERMINATION OF EMPLOYMENT.
If a Participant ceases to be an Employee for any reason other than
those specified in Section 7.1 above, except as otherwise determined by the
Committee in any particular case, the following will apply:
(a) All Options and Appreciation Rights held by the
Participant that were not exercisable when his or her employment ended
will terminate. Any Awards that were so exercisable will continue to be
exercisable until the earlier of (1) the date which is three months
after the date on which his or her employment ended and (2) the date on
which the Award would have terminated had the Participant remained an
Employee.
(b) All Restricted Stock held by the Participant must be
transferred to the Company in accordance with Section 6.1 above.
(c) Any payment or benefit under a Performance Award to which
the Participant has not become irrevocably entitled will be forfeited
and the Award canceled, unless otherwise provided in the instrument
evidencing the Award or otherwise agreed to by the Committee.
For purposes of this Section 7.2, an Employee's employment will not be
considered to have ended (1) in the case of sick leave or other bona fide leave
of absence approved for purposes of the Plan by the Committee, so long as his or
her right to reemployment is guaranteed either by statute or by contract, (2) as
a result of a reduction in the Company's percentage ownership of the entity
employing the Employee, or (3) in the case of a transfer of the Employee to the
employment of a person or entity acquiring all or a portion of the business of
the Company or any of its subsidiaries.
7.3 CHANGE IN CONTROL.
Notwithstanding any other provision of the Plan or of any Award, in the
event of a Change in Control as defined in Exhibit A the following will apply:
(a) Each outstanding Option and Appreciation Right will
immediately become exercisable in full.
(b) Each outstanding share of Restricted Stock will
immediately become free of all restrictions and conditions.
(c) Conditions on Performance Awards which relate solely to
the passage of time and continued employment will be removed.
Performance or other conditions (other than conditions relating solely
to the passage of time and continued employment) will continue to apply
unless otherwise provided in the instrument evidencing the Awards or in
any other agreement between the Participant and the Company or unless
otherwise agreed to by the Committee.
(d) During the 60-day period following the Change in Control,
a Participant holding an Option or an Appreciation Right will have the
right (by giving written notice to the Company) to surrender all or
part of his or her Award to the Company and receive a cash payment
equal to (1) the excess of the value per share of stock (as defined
below) on the date of exercise over the exercise price per share,
adjusted, in the case of a Performance Appreciation Right to take into
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account the performance of the Stock in comparison to the other stocks
or index specified by the Committee, multiplied by (2) the number of
shares subject to the surrendered Award. Such right will not apply to
any Option as to which the Committee expressly excludes such right at
the date of grant; provided, however, if (i) the Change of Control is a
merger to be accounted for as a pooling of interest, (ii) adequate
provision is made for all Participants to receive, in substitution for
their Awards, awards from the surviving entity in the same form and
terms (after giving effect to the foregoing paragraphs (a), (b) and
(c)) and with the same economic value as their Awards under the Plan,
and (iii) the Committee, in its discretion, determines that the rights
to receive cash payment under this paragraph (d) are not in the best
interests of the Company, then no Participant shall have the right
pursuant to this paragraph (d) to surrender his or her Award to the
Company for a cash payment. As used in this paragraph with respect to
an election by a Participant to receive cash in respect of an Award
which is not an ISO, the term "value per share" will mean the higher of
(i) the highest reported sales price, regular way, of a share of Stock
on the New York Stock Exchange Composite Transactions Index during the
60-day period ending on the date of the Change in Control and (ii) if
the Change in Control is the result of the acquisition of Stock by a
"person" (as defined in Exhibit A), the highest price per share of the
Stock paid by such person. In the case of an election by a Participant
to receive cash in respect of an ISO, however, the term "value" will
mean fair market value unless otherwise agreed to by the Participant.
7.4 MERGERS, CONSOLIDATIONS, ETC.
In the event of a merger or consolidation in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons or entities acting in concert, or in the event of sale or transfer of
all or substantially all of the Company's assets (a "covered transaction"), all
outstanding Options and Appreciation Rights may be terminated by the Board as of
the effective date of the covered transaction, subject to the following: If the
covered transaction follows a Change in Control or would give rise to a Change
in Control, no Option or Appreciation Right will be terminated (without the
consent of the Participant) prior to the expiration of 20 days following the
later of (i) the date on which the Award became fully exercisable and (ii) the
date on which the Participant received written notice of the covered
transaction.
8. GENERAL PROVISIONS
8.1. DOCUMENTATION OF AWARDS.
Awards will be evidenced by written instruments prescribed by the
Company from time to time. Such instruments may be in the form of agreements, to
be executed by both the Participant and the Company, or certificates, letters or
similar instruments, which need not be executed by the Participant but
acceptance of which will evidence agreement to the terms thereof and hereof.
8.2. RIGHTS AS A STOCKHOLDER; DIVIDEND EQUIVALENTS.
Except as specifically provided by the Plan, the receipt of an Award
will not give a Participant rights as a stockholder; the Participant will obtain
such rights, subject to any limitations imposed by the Plan or the instrument
evidencing the Award, upon actual receipt of Stock. However, the Committee may,
on such conditions as it deems appropriate, provide that a Participant will
receive a benefit in lieu of
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cash dividends that would have been payable on any or all Stock subject to the
Participant's Award had such Stock been outstanding. Without limitation, the
Committee may provide for payment to the Participant of amounts representing
such dividends, either currently or in the future, or for the investment of such
amounts on behalf of the Participant.
8.3. CONDITIONS ON DELIVERY OF STOCK.
The Company will not be obligated to deliver any shares of Stock
pursuant to the Plan or to remove any restriction from shares previously
delivered under the Plan (a) until all conditions of the Award have been
satisfied or removed, (b) until, in the opinion of the Company's counsel, all
applicable federal and state laws and regulations have been complied with, (c)
if the outstanding Stock is at the time listed on any stock exchange, until the
shares to be delivered have been listed or authorized to be listed on such
exchange upon official notice of notice of issuance, and (d) until all other
legal matters in connection with the issuance and delivery of such shares have
been approved by the Company's counsel. If the sale of Stock has not been
registered under the Securities Act of 1933, as amended, the Company may
require, as a condition to exercise of the Award, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of such Act and may require that the certificates evidencing such
Stock bear an appropriate legend restricting transfer.
8.4. TAX WITHHOLDING.
The Company will withhold from any payment made pursuant to an Award an
amount sufficient to satisfy all federal, state and local withholding tax
requirements (the "withholding requirements").
In the case of an Award pursuant to which Stock may be delivered, the
Committee will have the right to require that the Participant or other
appropriate person remit to the Company an amount sufficient to satisfy the
withholding requirements, or make other arrangements satisfactory to the
Committee with regard to such requirements, prior to the delivery of any Stock.
If and to the extent that such withholding is required, the Committee may permit
the Participant or such other person to elect at such time and in such manner as
the Committee provides to have the Company hold back from the shares to be
delivered, or to deliver to the Company, Stock having a value calculated to
satisfy the withholding requirement.
If at the time an ISO is exercised the Committee determines that the
Company could be liable for withholding requirements with respect to a
disposition of the Stock received upon exercise, the Committee may require as a
condition of exercise that the person exercising the ISO agree (a) to inform the
Company promptly of any disposition of Stock received upon exercise, and (b) to
give such security as the Committee deems adequate to meet the potential
liability of the Company for the withholding requirements and to augment such
security from time to time in any amount reasonably deemed necessary by the
Committee to preserve the adequacy of such security.
8.5. NONTRANSFERABILITY OF AWARDS.
Except as otherwise specifically provided by the Committee, no Award
may be transferred other than by will or by the laws of descent and
distribution, and during a Participant's lifetime an Award requiring exercise
may be exercised only by him or her (or in the event of incapacity, the person
or persons properly appointed to act on his or her behalf).
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8.6. ADJUSTMENTS IN THE EVENT OF CERTAIN TRANSACTIONS.
(a) In the event of a stock dividend, stock split or combination of
shares, recapitalization or other change in the Company's capitalization, or
other distribution with respect to common stockholders other than normal cash
dividends, the Committee will make any appropriate adjustments to the maximum
number of shares that may be delivered under the Plan under Section 4 above.
(b) In any event referred to in paragraph (a) the Committee will also
make any appropriate adjustments to the number and kind of shares of stock or
securities subject to Awards then outstanding or subsequently granted, any
exercise prices relating to Awards and any other provisions of Awards affected
by such change. The Committee may also make such adjustments to take into
account material changes in law or in accounting practices or principles,
mergers, consolidations, acquisitions, dispositions, repurchases or similar
corporate transactions, or any other event, if it is determined by the Committee
that adjustments are appropriate to avoid distortion in the operation of the
Plan, but no such adjustments other than those required by law may adversely
affect the rights of any Participant (without the Participant's consent) under
any Award previously granted.
8.7. EMPLOYMENT RIGHTS.
Neither the adoption of the Plan nor the grant of Awards will confer
upon any person any right to continued employment with the Company or any
subsidiary or affect in any way the right of the Company or subsidiary to
terminate an employment relationship at any time. Except as specifically
provided by the Committee in any particular case, the loss of existing or
potential profit in Awards granted under the Plan will not constitute an element
of damages in the event of termination of an employment relationship even if the
termination is in violation of an obligation of the Company to the Employee.
8.8. DEFERRAL OF PAYMENTS.
The Committee may agree at any time, upon request of the Participant,
to defer the date on which any payment under an Award will be made.
8.9. PAYMENT FOR STOCK; LOANS.
Stock purchased from the Company under this Plan either as Restricted
Stock or on exercise of an Option may be paid for with such legal consideration
as the Committee may determine. If and to the extent authorized by the
Committee, the Company may permit Participants to pay for Stock with promissory
notes, and may make loans to Participants of all or a portion of any withholding
taxes to be paid in connection with the grant, exercise or vesting of any Award.
Any such extensions of credit may be secured by Stock or other collateral, or
may be made on an unsecured basis, as the Committee may determine.
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9. DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
The Committee may at any time discontinue granting Awards under the
Plan. The Board may at any time or times amend the Plan or any outstanding Award
for any purpose which may at the time be permitted by law, or may at any time
terminate the Plan as to any further grants of Awards, provided that (except to
the extent expressly required or permitted by the Plan) no such amendment will,
without the approval of the stockholders of the Company, (a) increase the
maximum number of shares available under the Plan, (b) extend the time within
which Awards may be granted, or (c) amend the provisions of this Section 9, and
no amendment or termination of the Plan may adversely affect the rights of any
Participant (without his or her consent) under any Award previously granted.
CABOT CORPORATION
By ____________________________
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EXHIBIT A
A "Change in Control" shall be deemed to have occurred if:
(a) any "person" as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "1934 Act") (other than (i) the
Company, (ii) any subsidiary of the Company, (iii) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or of
any subsidiary of the Company, or (iv) any company owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company), is or becomes the
"beneficial owner" (as defined in Section 13(d) of the 1934 Act), together with
all Affiliates and Associates (as such terms are used in Rule 12b-2 of the
General Rules and Regulations under the 1934 Act) of such person, directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities;
(b) the stockholders of the Company approve a merger or consolidation
of the Company with any other company, other than (1) a merger or consolidation
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), in combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any
subsidiary of the Company, at least 65% of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (2) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
after which no "person" (with the method of determining "beneficial ownership"
used in clause (a) of this definition) owns more than 25% of the combined voting
power of the securities of the Company or the surviving entity of such merger or
consolidation; or
(c) during any period of two consecutive years (not including any
period prior to the execution of the Plan), individuals who at the beginning of
such period constitute the Board, and any new director (other than a director
designated by a person who has conducted or threatened a proxy contest, or has
entered into an agreement with the Company to effect a transaction described in
clause (a), (b) or (d) of this definition) whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved cease for any reason to constitute at least
a majority thereof; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
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