Classmates.com 2010 Annual Report Download - page 240

outstanding securities (as measured in terms of the power to vote with respect to the election of Board members), (ii) the closing of a sale,
transfer or other disposition of all or substantially all of the Company’s assets, (iii) the closing of any transaction or series of related transactions
pursuant to which any person or any group of persons comprising a “group” within the meaning of Rule 13d-5(b)(1) of the 1934 Act (other than
the Company or a person that, prior to such transaction or series of related transactions, directly or indirectly controls, is controlled by or is under
common control with, the Company) acquires directly or indirectly (whether as a result of a single acquisition or by reason of one or more
acquisitions within the twelve (12)-month period ending with the most recent acquisition) beneficial ownership (within the meaning of Rule 13d-
3 of the 1934 Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s securities (as
measured in terms of the power to vote with respect to the election of Board members) outstanding immediately after the consummation of such
transaction or series of related transactions, whether such transaction involves a direct issuance from the Company or the acquisition of
outstanding securities held by one or more of the Company’s existing stockholders, (iv) a merger, recapitalization, consolidation, or other
transaction to which the Company is a party or a sale, transfer or other disposition of all or substantially all of the Company’s assets if, in either
case, the members of the Board immediately prior to consummation of the transaction do not, upon consummation of the transaction, constitute
at least a majority of the board of directors of the surviving entity or the entity acquiring the Company’s assets, as the case may be, or a parent
thereof, or (v) a change in the composition of the Board over a period of thirty-six (36) consecutive months or less such that a majority of the
Board members ceases by reason of one or more contested elections for Board membership to be comprised of individuals who either (A) have
been Board members continuously since the beginning of such period or (B) have been appointed or nominated for election as Board members
during such period by at least a majority of the Board members described in clause (A) who were still in office at the time the Board approved
such appointment or nomination.
5.
NON-SOLICITATION
For the eighteen (18) month period following the termination of Employee’s employment with the Company (but only if
Employee has received the Severance Payment specified in Section 4.3 above with respect to a termination of Employee’
s employment prior to a
Change in Control) (the “ Restricted Period ”) Employee shall not directly or indirectly solicit or recruit for employment, any person or persons
who are employed by Company or any of its subsidiaries or affiliates, or who were so employed at any time within a period of twelve (12)
months immediately prior to the date Employee’s employment terminated, or otherwise interfere with the relationship between any such person
and the Company; nor will Employee assist anyone else in recruiting any such employee to work for another company or business or discuss
with any such person his or her leaving the employ of the Company or engaging in a business activity in competition with the Company.
6.
LIMITATION ON PAYMENTS
Notwithstanding any other provision of this Agreement, if any payment or benefit received or to be received by Employee
(including any payment or benefit received pursuant to this Agreement or otherwise) would be (in whole or part) subject to the excise tax
imposed by Section 4999 of the Code, or any successor provision thereto, or any similar tax imposed by state or local law, or any interest or
penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as
the “ Excise Tax ”), then the cash payments provided to Employee under this Agreement shall first be reduced, with each such payment to be
reduced pro-rata but without any change in the payment date and with the Severance Payment to be the first such cash payments so reduced, and
then, if necessary, the accelerated vesting of Employee’
s equity awards pursuant to the provisions of this Agreement shall be reduced in the same
chronological order in which those awards were made, but only to the extent necessary to assure that Employee receives only the
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