EXHIBIT 10.15
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CABOT MICROELECTRONICS CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
INTRODUCTION
1.01 Purpose. The purpose of the Cabot Microelectronics Corporation Employee
Stock Purchase Plan (the "Plan") is to provide employees of Cabot
Microelectronics Corporation (the "Company") and its Designated
Subsidiary Corporations with an opportunity to purchase Common Stock of
the Company through accumulated payroll deductions.
1.02 Rules of Interpretation. It is the intention of the Company to have the
Plan qualify as an "employee stock purchase plan" under Section 423 of
the Internal Revenue Code of 1986, as amended (the "Code"), and the
provisions of the Plan, accordingly, shall be construed so as to extend
and limit participation in a manner consistent with the requirements of
that section of the Code; provided, however, that the Committee shall
have the discretion to cause the options granted in one or more
Offering Periods under the Plan to be options to which Section 423 of
the Code does not apply.
ARTICLE II
DEFINITIONS
2.01 "Board" shall mean the Board of Directors of the Company.
2.02 "Change in Capitalization" shall mean any increase or reduction in the
number of shares of Common Stock, or any change (including, but not
limited to, in the case of a spin-off, dividend or other distribution
in respect of shares of Common Stock, a change in value) in the shares
of Common Stock or exchange of shares of Common Stock for a different
number or kind of shares, other equity interests or other property of
the Company or another entity, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off,
split-up, issuance of warrants or rights or debentures, stock dividend,
stock split or reverse stock split, cash dividend, property dividend,
combination or exchange of shares, repurchase of shares, change in
corporate structure or otherwise.
2.03 "Change in Control" shall be as defined in Appendix A.
2.04 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.05 "Common Stock" shall mean the Common Stock of the Company.
2.06 "Company" shall mean Cabot Microelectronics Corporation, a Delaware
corporation.
2.07 "Compensation" shall mean the gross cash compensation (including base
salary, shift premium, overtime earnings and cash bonuses exclusive of
relocation and sign-on bonuses) paid by the Company or a Designated
Subsidiary Corporation in accordance with the terms of employment, but
excluding all bonus payments, expense allowances and compensation paid
in a form other than cash.
2.08 "Committee" shall mean the committee described in Article XI.
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2.09 "Designated Subsidiary Corporation" shall mean any Subsidiary of the
Company which has been designated by the Committee from time to time in
its sole discretion as eligible to participate in the Plan.
2.10 "Employee" shall mean any individual who is a common law employee of
the Company or a Designated Subsidiary Corporation for tax purposes
whose customary employment with the Company is at least twenty (20)
hours per week and more than five (5) months in any calendar year.
2.11 "Enrollment Date" shall mean the first day of each Offering Period.
2.12 "Exercise Date" shall mean the last day of each Offering Period.
2.13 "Fair Market Value" shall mean, as of any date, the value of a share of
Common Stock determined as follows:
2.13.1 If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for a share of Common Stock (or the closing bid, if
no sales were reported) as quoted on such exchange or system on
the date of such determination, as reported in The Wall Street
Journal or such other source as the Committee deems reliable,
or;
2.13.2 If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean of the closing bid and asked
prices for a share of the Common Stock on the date of such
determination, as reported in The Wall Street Journal or such
other source as the Committee deems reliable, or;
2.13.3 In the absence of an established market for the Common Stock,
the Fair Market Value of a share thereof shall be determined in
good faith by the Committee.
2.13.4 Notwithstanding the above, in the case of the first day of the
initial Offering Period, Fair Market Value shall mean the public
offering price in the Initial Public Offering.
2.14 "Initial Public Offering" shall mean the first public offering of the
Common Stock pursuant to the Securities Act of 1933, as amended.
2.15 "Offering Period" shall mean a period of approximately six (6) months
commencing on the first Trading Day on or after January 1st and
terminating on the last Trading Day in the period ending the following
June 30th, or commencing on the first Trading Day on or after July 1st
and terminating on the last Trading Day in the period ending the
following December 31st, provided, however, that the first Offering
Period under the Plan shall commence on the first date on which
quotations are available for the Common Stock on any established stock
exchange or a national market system and shall end on a Trading Day
selected by the Committee consistent with Section 423 of the Code. The
duration of Offering Periods may be changed pursuant to Sections 13.05
and 13.06.
2.16 "Plan Representative" shall mean any person designated from time to
time by the Committee to receive certain notices and take certain other
administrative actions relating to participation in the Plan.
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2.17 "Plan" shall mean the Cabot Microelectronics Corporation Employee Stock
Purchase Plan.
2.18 "Purchase Price" shall mean an amount set by the Committee, but not
less than the lesser of 85% of the Fair Market Value of a share of
Common Stock on the Enrollment Date or on the Exercise Date, whichever
is lower; provided, however, that the Purchase Price may be adjusted by
the Board pursuant to Section 13.06.
2.19 "Subsidiary" shall mean a corporation, domestic or foreign, of which
not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
2.20 "Trading Day" shall mean a day on which national stock exchanges and
the Nasdaq System are open for trading.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01 Eligibility. Each Employee on an Enrollment Date of an Offering Period
shall be eligible to participate in such Offering Period. Persons who
are not Employees shall not be eligible to participate in such Offering
Period. Employees of Cabot Corporation and its subsidiaries, other than
the Company and its Designated Subsidiary Corporations, are not
eligible to participate in the Plan.
3.02 Restrictions on Participation. Notwithstanding any provision of the
Plan to the contrary, no Employee shall be granted an option to
purchase shares of Common Stock under the Plan:
3.02.1 If, immediately after the grant, such Employee would own stock
and/or hold outstanding options to purchase stock possessing 5%
or more of the total combined voting power or value of all
classes of stock of the Company (for purposes of this paragraph,
the rules of Section 424(d) of the Code shall apply in
determining stock ownership of any Employee); or
3.02.2 If such Employee's rights to purchase stock under all employee
stock purchase plans of the Company accrue at a rate which
exceeds $25,000 of Fair Market Value of the stock (determined at
the time such option is granted) for each calendar year in which
such option is outstanding at any time.
3.03 Commencement of Participation. An Employee may become a participant by
completing an authorization for payroll deductions on the form provided
by the Company and filing the completed form with the Plan
Representative on or before the filing date set therefor by the
Committee, which date shall be prior to the next Enrollment Date.
Payroll deductions for a participant shall commence on the next
following Enrollment Date after the Employee's authorization for
payroll deductions becomes effective and shall continue until
termination of the Plan, the participant's earlier termination of
participation in the Plan, or the participant's change in payroll
deductions pursuant to Section 5.03. Each participant in the Plan shall
be deemed to continue participation until termination of the Plan or
such participant's earlier termination of participation in the Plan
pursuant to Article VIII below.
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ARTICLE IV
STOCK SUBJECT TO THE PLAN AND OFFERINGS
4.01 Stock Subject to the Plan. Subject to the provisions of Section 13.03
of the Plan, the Board shall reserve for issuance under the Plan an
aggregate four hundred seventy-five thousand (475,000) shares of the
Company's Common Stock, which shares shall be authorized but unissued
shares of Common Stock, treasury shares, or shares of Common Stock
purchased by the Company or the Plan on an established stock exchange
or a national market system.
4.02 Offerings. The Plan will be implemented by two annual offerings of the
Company's Common Stock each calendar year. Each offering will be
outstanding during the applicable Offering Period.
ARTICLE V
PAYROLL DEDUCTIONS
5.01 Amount of Deduction. The form described in Section 3.03 will permit a
participant to elect payroll deductions of any whole percentage from
one percent (1%) through ten percent (10%) of such participant's
Compensation for each pay period during an Offering Period.
5.02 Participant's Account. All payroll deductions made for a participant
shall be credited to an account established for such participant under
the Plan. A participant may not make any separate cash payment into
such account.
5.03 Changes in Payroll Deductions. A participant may reduce or increase
future payroll deductions (within the limits described in Section 5.01)
by filing with the Plan Representative a form provided by the Company
for such purpose. The effective date of any increase or reduction in
future payroll deductions will be the next following payroll period
succeeding processing of the change form.
ARTICLE VI
GRANTING OF OPTION
6.01 Number of Option Shares. On an Enrollment Date each participant shall
be deemed to have been granted an option to purchase a number of shares
of Common Stock determined by dividing the participant's accumulated
payroll deductions on the Exercise Date by the lower of (i) 85% of the
Fair Market Value of a share of Common Stock on the Enrollment Date or
(ii) 85% of the Fair Market Value of a share of Common Stock on the
Exercise Date; subject, however, to any applicable limitations
contained in this Plan. In addition, the maximum number of shares a
participant may purchase with respect to any Offering Period is that
number of shares determined by dividing $12,500 by the Fair Market
Value of a share of Common Stock on the Enrollment Date; provided,
however, the maximum number of shares a participant may purchase with
respect to the first Offering Period is that number of shares
determined by dividing $25,000 by the Fair Market Value of a share of
Common Stock on the Enrollment Date.
ARTICLE VII
EXERCISE OF OPTION
7.01 Automatic Exercise. Subject to the next following sentence, each Plan
participant's option for the purchase of stock with payroll deductions
made during any Offering Period will be exercised automatically on the
applicable Exercise Date for the purchase of the number of full and
deemed fractional shares of Common Stock which the accumulated payroll
deductions in the participant's account at the time will purchase at
the Purchase Price (but not in excess of the maximum number of shares
determined pursuant to Section 6.01), and any excess accumulated
payroll deductions which, but for this limitation, would have been used
to purchase shares, will be held
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for the purchase of Common Stock on the next following Exercise Date
without interest. The Committee shall have the discretion to reduce the
number of shares of Common Stock to be purchased by participants with
respect to an Offering Period and to allocate such reduced number of
shares of Common Stock among participants in such Offering Period, so
long as such reduction and allocation is done in a manner consistent
with Section 423 of the Code. Any payroll deductions not applied to the
purchase of shares of Common Stock by reason of the reduction pursuant
to this Section 7.01 shall be promptly refunded to participants after
the Exercise Date of the Offering Period to which such reduction
applies.
7.02 Withdrawal of Account. No participant in the Plan shall be entitled to
withdraw any amount from the accumulated payroll deductions in his or
her account; provided, however, that a participant's accumulated
payroll deductions shall be refunded to the participant as and to the
extent specified in Section 8.01 below upon termination of such
participant's participation in the Plan.
7.03 Fractional Shares. Fractional shares of Common Stock will not be issued
under the Plan. Any deemed fractional share of Common Stock purchased
by a Participant pursuant to Section 7.01 hereof will be combined with
any deemed fractional shares purchased by the Participant in subsequent
Offering Periods and whole shares of Common Stock then issued therefor.
The Fair Market Value of all deemed fractional shares shall be paid in
cash.
7.04 Exercise of Options. During a participant's lifetime, options held by
such participant shall be exercisable only by such participant.
7.05 Delivery of Stock. As promptly as practicable after each Exercise Date,
the Company will deliver to each participant the shares of Common Stock
purchased upon exercise of such participant's option. The Company may
deliver such shares in certificated or book entry form, at the
Company's sole election.
ARTICLE VIII
WITHDRAWAL
8.01 In General. A participant may stop participating in the Plan at any
time by giving written notice to the Plan Representative. Upon
processing of any such written notice, no further payroll deductions
will be made from the participant's Compensation during such Offering
Period or thereafter, unless and until such participant elects to
resume participation in the Plan by providing written notice to the
Plan Representative pursuant to Section 3.03 above. Such participant's
payroll deductions accumulated prior to processing of such notice shall
be applied toward purchasing full and deemed fractional shares of
Common Stock in the then-current Offering Period as provided in Section
7.01 above unless the participant requests in writing to have the
accumulated payroll deductions and cash in lieu of deemed fractional
shares returned to him or her.
8.02 Effect on Subsequent Participation. A participant's withdrawal from any
Offering Period will not have any effect upon such participant's
eligibility to participate in any succeeding Offering Period or in any
similar plan which may hereafter be adopted by the Company and for
which such participant is otherwise eligible.
8.03 Termination of Employment. Upon termination of a participant's
employment with the Company or any Designated Subsidiary Corporation
(as the case may be) for any reason, including retirement but excluding
death, the participant's payroll deductions accumulated prior to such
termination, if any, shall be applied toward purchasing full and deemed
fractional shares of Common Stock in the then-current Offering Period
so long as the Exercise Date with respect to such Offering Period
occurs on or within three months following such termination; provided,
however, that (1) the participant may request in writing to have the
accumulated payroll
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deductions and cash in lieu of deemed fractional shares returned to him
or her, and (2) upon termination of a participant's employment with the
Company or any Designated Subsidiary Corporation (as the case may be)
as a result of the participant's death, the participant's payroll
deductions accumulated prior to such termination and cash in lieu of
deemed fractional shares shall be paid to his or her estate.
ARTICLE IX
INTEREST
9.01 Payment of Interest. No interest will be paid or allowed on any money
paid into the Plan or credited to the account of or distributed to any
participant.
ARTICLE X
STOCK
10.01 Participant's Interest in Option Stock. No participant will have any
interest in shares of Common Stock covered by any option held by such
participant until such option has been exercised as provided in Section
7.01 above.
10.02 Registration of Stock. Shares of Common Stock purchased by a
participant under the Plan will be recorded in the name of the
participant, or, if the participant so directs by written notice to the
Plan Representative prior to the applicable Exercise Date, in the names
of the participant and the participant's spouse as joint tenants with
rights of survivorship or as tenants by the entireties, to the extent
permitted by applicable law.
10.03 Restrictions on Exercise. The Board may, in its discretion, require as
conditions to the exercise of any option that the shares of Common
Stock reserved for issuance upon the exercise of such option shall have
been duly listed, upon official notice of issuance, upon a stock
exchange or market, and that either:
10.03.1 a registration statement under the Securities Act of 1933, as
amended, with respect to said shares shall be effective, or
10.03.2 the participant shall have represented at the time of purchase,
in form and substance satisfactory to the Company, that it is
his or her intention to purchase the shares for investment and
not for resale or distribution.
ARTICLE XI
ADMINISTRATION
11.01 Appointment of Committee. The Plan shall be administered by the Board
or a Committee of members of the Board appointed by the Board. The
Board or its Committee shall have full and exclusive discretionary
authority to construe, interpret and apply the terms of the Plan, to
determine eligibility and to adjudicate all disputed claims filed under
the Plan. Every finding, decision and determination made by the Board
or its Committee shall, to the full extent permitted by law, be final
and binding upon all parties.
11.02 Authority of Committee. Subject to the express provisions of the Plan,
the Committee shall have plenary authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt
rules and regulations for administering the Plan, and to make all other
determinations deemed necessary or advisable for administering the
Plan. The Committee's determination of the foregoing matters shall be
conclusive. Except as otherwise prohibited by applicable law, the
Committee may delegate some or all of its authority specified herein to
the Plan Representative.
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11.03 Rules Governing the Administration of the Committee. The Board may from
time to time appoint members of the Committee in substitution for or in
addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee may select one of its
members as its chairman, shall hold its meetings at such times and
places as it shall deem advisable, and may hold telephonic meetings.
All determinations of the Committee shall be made by a majority of its
members. A decision or determination reduced to writing and signed by a
majority of the members of the Committee shall be as fully effective as
if it had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a secretary and shall make such rules
and regulations for the conduct of its business as it shall deem
advisable.
11.04 Rules and Procedures Applicable to Offering Periods. The Committee
shall have the authority and discretion to adopt rules and procedures
applicable to one or more Offering Periods under the Plan. Any such
rules and procedures shall be established by the Committee and
communicated to participants in advance of any Offering Period to which
they apply. Such rules and procedures may, in the discretion of the
Committee, cause the options granted under any such Offering Period to
be options to which Section 423 of the Code does not apply.
ARTICLE XII
FOREIGN JURISDICTIONS
Notwithstanding any other provision in this Plan, the Committee may
adopt rules or procedures relating to the operation and administration of the
Plan to accommodate the specific requirements of local laws and procedures.
Without limiting the generality of the foregoing sentence, the Committee is
specifically authorized to adopt rules and procedures regarding handling of
payroll deductions, payment of interest, conversion of local currency, payroll
tax, withholding procedures and handling of stock certificates which vary in
accordance with the requirements of such local law and procedures. To the
extent that any such rules or procedures are adopted with respect to options
granted in an Offering Period to which Section 423 of the Code is intended to
apply, the Committee shall cause such rules and procedures to be consistent
with Section 423 of the Code.
ARTICLE XIII
MISCELLANEOUS
13.01 Transferability. Neither payroll deductions credited to any
participant's account nor any option or other rights with regard to the
exercise of an option to receive Common Stock under the Plan may be
assigned, transferred, pledged, or otherwise disposed of in any way by
the participant other than by will or the laws of descent and
distribution. Any such attempted assignment, transfer, pledge or other
disposition shall be without effect except that the Company may, in its
discretion, treat such act as an election to withdraw from
participation in the Plan in accordance with Section 8.01.
13.02 Use of Funds. All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate purpose.
The Company shall not segregate such payroll deductions.
13.03 Adjustment Upon Changes in Capitalization; Change in Control.
13.03.1 Changes in Capitalization. Subject to any required action by
the stockholders of the Company, the Reserves, the maximum
number of shares each participant may purchase per Offering
Period (pursuant to Section 6.01), as well as the Purchase
Price and the number of shares of Common Stock covered by each
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option under the Plan which has not yet been exercised shall be
proportionately adjusted for any Change in Capitalization. Such
adjustment shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares
of stock of any class shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or Purchase
Price of shares of Common Stock subject to an option.
13.03.2 Change in Control. In the event of a Change in Control, the
Offering Period during which the Change in Control would
otherwise occur shall be accelerated and shall end on the last
payroll date immediately preceding the Change in Control.
13.04 Amendment or Termination. The Board shall have complete power and
authority to terminate or amend the Plan; provided, however, that the
Board shall not, without the approval of the shareholders of the
Company, alter (i) the aggregate number of shares of Common Stock which
may be issued under the Plan (except pursuant to Section 13.03 above),
or (ii) the class of Employees eligible to receive options under the
Plan, other than to designate Subsidiaries as Designated Subsidiary
Corporations; and provided further, however, that, subject to Section
13.05 no termination, modification, or amendment of the Plan may,
without the consent of an Employee then having an option under the Plan
to purchase shares of Common Stock, adversely affect the rights of such
Employee under such option. In addition, and notwithstanding anything
contained in this Plan to the contrary, to the extent necessary under
Section 423 of the Internal Revenue Code (or any successor rule or
provision or any applicable law or regulation), the Company shall
obtain stockholder approval in such a manner and to such a degree as so
required.
13.05 The Committee shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, permit payroll
withholding in excess of the amount designated by a participant in
order to adjust for delays or mistakes in the Company's processing of
properly completed withholding elections, establish reasonable waiting
and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for
each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole
discretion advisable which are consistent with the Plan, in each case
so long as any such action is consistent with Section 423 of the Code.
None of the foregoing actions shall be considered to have adversely
affected any right of any participant.
13.06 In the event that the Committee determines that the ongoing operation
of the Plan may result in unfavorable financial accounting
consequences, the Committee may, in its discretion and, to the extent
necessary or desirable, modify or amend the Plan to reduce or eliminate
such accounting consequence including, but not limited to:
13.06.1 changing the Purchase Price for any Offering Period including
an Offering Period underway at the time of the change in
Purchase Price;
13.06.2 shortening any Offering Period so that the Offering Period ends
on a new Exercise Date, including an Offering Period underway
at the time of such action; and
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13.06.3 allocating shares of Common Stock to participants pursuant to
Section 7.01 hereof.
None of the foregoing actions shall be considered to have adversely
affected any right of any participant.
13.07 Notices. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company by
the Plan Representative.
13.08 Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with
all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon
which the shares may then be listed, and shall be further subject to
the approval of counsel for the Company with respect to such
compliance. As a condition to the exercise of an option, the Company
may require the person exercising such option to represent and warrant
at the time of any such exercise that the shares are being purchased
only for investment and without any present intention to sell or
distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned
applicable provisions of law.
13.09 Effective Date. The Plan shall become effective as of its adoption by
the Board, subject to approval by the holders of a majority of the
shares of Common Stock, and shall continue in effect until the shares
of Common Stock reserved for issuance under the Plan have been
depleted, unless sooner terminated under Section 13.04 hereof. If the
Plan is not so approved, the Plan shall not become effective.
13.10 No Employment Rights. The Plan does not, directly or indirectly, create
in any person any right with respect to employment or continuation of
employment by the Company or any Subsidiary, and it shall not be deemed
to interfere in any way with the Company's or any Subsidiary's right to
terminate, or otherwise modify, any Employee's employment at any time.
13.11 Effect of Plan. The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all successors
of each Employee participating in the Plan, including, without
limitation, such Employee's estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy or representative of creditors of such Employee.
13.12 Governing Law. The law of the State of Delaware will govern all matters
relating to this Plan except to the extent superseded by the federal
laws of the United States.
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APPENDIX A
A "Change in Control" shall be deemed to have occurred if, following the
"Distribution" (as defined in the Master Separation Agreement, dated March 27,
2000, to which the Company and Cabot Corporation are parties):
(a) any "person" as such term is used in Sections 13(d) and 14(d) of
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 30% or
more of the combined voting power of the Company's then outstanding securities;
or
(b) the stockholders of the Company approve a merger or consolidation
of the Company with any other company, other than (i) 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 60% of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (ii) 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 30% 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.