those facts were not known by the Company at the time of the termination, then the Company may provide the Participant with written notice, including the facts establishing that the purported “Cause” was not known at the time of the termination, in which case the Participant’s termination of employment will be considered a termination for “Cause.”
2.8 “
Change in Capitalization
” means any increase or decrease in the number or kind of Shares, any change (including, but not limited to, in the case of a spin-off, dividend, or other distribution in respect of Shares, a change in value) in the Shares, or any exchange of Shares for a different number or kind of shares or other securities of the Company or another entity, in each case by reason of a reclassification, recapitalization, merger, amalgamation, consolidation, reorganization, spin-off, split-up, stock dividend, stock split or reverse stock split, extraordinary or non-recurring cash dividend, property dividend, combination or exchange of shares, repurchase of shares, change in corporate structure, any similar corporate event or transaction, or any other transaction that is an “equity restructuring” within the meaning of ASC Topic 718.
2.9 “
Change in Control
” means the occurrence of any of the following:
(a) An acquisition (other than directly from the Company) of any voting securities of the Company (the “
Voting Securities
”) by any “person or group” (as such term is used in Section 13(d) of the Exchange Act) following the Effective Date, immediately after which such person or group first has “
Beneficial Ownership
” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of the combined voting power of the Company’s then-outstanding Voting Securities;
provided, however,
that in determining whether a Change in Control has occurred pursuant to this Section 2.09(a), the acquisition of Voting Securities in a Non-Control Acquisition (as hereinafter defined) will not constitute a Change in Control. A “
Non-Control Acquisition
” means an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (1) the Company or (2) any corporation or other Person, the majority of the voting power, voting equity securities, or equity interest of which is owned, directly or indirectly, by the Company (for purposes of this definition, a “
Related Entity
”), (ii) the Company or any Related Entity or any Permitted Holder, or (iii) any Person in connection with a Non-Control Transaction (as hereinafter defined);
(b) The individuals who, as of the Effective Date, are members of the Board (the “
Incumbent Board
”) cease for any reason to constitute at least a majority of the members of the Board;
provided, however
, that if the election, or nomination for election, by the Company’s shareholders, of any new Director was approved by a vote of at least a majority of the members of the Incumbent Board, such new Director may, for purposes of the Plan, be considered as a member of the Incumbent Board; or
(c) The consummation of:
(i) A merger, amalgamation, consolidation, or reorganization (x) with or into the Company or (y) in which securities of the Company are issued (a “
Merger
”), unless such Merger is a Non-Control Transaction. A “
Non-Control Transaction
” means a Merger as a result of which:
(A) the shareholders of the Company immediately before such Merger own, directly or indirectly, immediately following such Merger at least a majority of the combined voting power of the outstanding voting securities of (1) the corporation resulting from such Merger (the “
Surviving Corporation
”), if more than 50% of the combined voting power of the then-outstanding voting securities of the Surviving Corporation is not Beneficially Owned, directly or indirectly, by another Person (a “
Parent Corporation
”), or (2) if there is one or more than one Parent Corporation, the ultimate Parent Corporation;
(B) the individuals who were members of the Board immediately prior to the execution of the agreement providing for such Merger constitute at least a majority of the members of the board of directors of (1) the Surviving Corporation, if there is no Parent Corporation, or (2) if there is one or more than one Parent Corporation, the ultimate Parent Corporation;
(C) no Person other than (1) the Company, (2) any Related Entity, (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to the Merger, was maintained by the Company or any Related Entity, or (4) any Person who, immediately prior to the Merger, had Beneficial Ownership of Voting Securities representing 50% or more of the combined voting power of the Company’s then-outstanding Voting Securities, has Beneficial Ownership, directly or indirectly, of 50% or more of the combined voting power of the outstanding voting securities of (x) the Surviving Corporation, if there is no Parent Corporation, or (y) if there is one or more than one Parent Corporation, the ultimate Parent Corporation; and
(D) one or more Permitted Holders, together, Beneficially Own, immediately following such Merger, more than 50% of the combined voting power of the outstanding voting securities of (x) the Surviving Corporation, if there is no Parent Corporation, or (y) if there is one or more than one Parent Corporation, the ultimate Parent Corporation;
