Common use of Mergers, Reorganizations, Etc Clause in Contracts

Mergers, Reorganizations, Etc. In the event of a merger, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer (each, a "Transaction"), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the Transaction: 6.1 The Option shall remain in effect in accordance with their terms. 6.2 The Option shall be converted into options to purchase stock in one or more of the corporations, including the Company, that are the surviving or acquiring corporations in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) to be held by holders of shares of the Company following the Transaction. The converted Options shall be vested only to the extent that the vesting requirements relating to the Options have been satisfied. 6.3 The Company shall provide a period of a least 10 days before the completion of the Transaction during which the Option may be exercised, to the extent then exercisable, and upon the expiration of that period, the Option shall immediately terminate. The Company may, its sole discretion, accelerate the exercisability of the Options so that the Options is exercisable in full during that period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction for purposes of this Agreement. There shall be no adjustment made under this Section 6 with respect to such transaction.

Mergers, Reorganizations, Etc. In the event of a merger, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer (each, a "“Transaction"”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the Transaction: 6.1 The Option shall remain in effect in accordance with their terms. 6.2 The Option shall be converted into options to purchase stock in one or more of the corporations, including the Company, that are the surviving or acquiring corporations in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) to be held by holders of shares of the Company following the Transaction. The converted Options shall be vested only to the extent that the vesting requirements relating to the Options have been satisfied. 6.3 The Company shall provide a period of a least 10 days before the completion of the Transaction during which the Option may be exercised, to the extent then exercisable, and upon the expiration of that period, the Option shall immediately terminate. The Company may, its sole discretion, accelerate the exercisability of the Options so that the Options is exercisable in full during that period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction for purposes of this Agreement. There shall be no adjustment made under this Section 6 with respect to such transaction.

Mergers, Reorganizations, Etc. In the event of a merger, consolidation, consolidation or plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation exchange to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction party or a series sale of related transactions) of all, all or substantially all, of the assets all of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer ’s assets (each, a "“Transaction"”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the TransactionOption: 6.1 4.2-1 The Option shall remain in effect in accordance with their its terms. 6.2 4.2-2 The Option shall be converted into options an option to purchase stock in one or more of the corporations, including the Company, corporation that are is the surviving or acquiring corporations corporation in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options option shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) corporation to be held by issued to holders of shares of the Company following the TransactionCompany. The converted Options Conversions shall be vested made without change in the total price applicable to the unexercised portion of the Option and with a corresponding adjustment in the Option price per share and shall neither (i) make the ratio, immediately after the event, of the Option price per share to the fair market value per share more favorable to the Optionee than that ratio immediately before the event nor (ii) make the aggregate spread, immediately after the event, between the fair market value of shares as to which the Option is exercisable and the Option price of such shares more favorable to the Optionee than that aggregate spread immediately before the event. Unless otherwise determined by the Board of Directors, the converted option shall be exercisable only to the extent that the vesting exercisability requirements relating to the Options Option have been satisfied. 6.3 4.2-3 The Company Board of Directors shall provide a 30-day period of a least 10 days before the completion consummation of the Transaction during which the Option may be exercised, exercised to the extent then exercisable, and and, upon the expiration of that such 30-day period, the Option shall immediately terminateterminate to the extent not exercised. The Company Board of Directors may, its in it sole discretion, accelerate the exercisability of the Options Option so that the Options it is exercisable in full during that such 30-day period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction for purposes of this Agreement. There shall be no adjustment made under this Section 6 with respect to such transaction.

Mergers, Reorganizations, Etc. In For purposes of this Section, a “Transaction” shall mean (a) a transaction (or a related series of transactions not in the event ordinary course of business) in which a majority of the assets or business of the Company is transferred, by merger, lease, sale, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization reorganization, liquidation or liquidation other transfer, to a person or entity that is not a parent of the Company, a wholly-owned subsidiary of the Company or another entity in which the shareholders of the Company is immediately prior to such transaction (or the first of a party, any sale, lease, exchange series of related transaction) receive in the transaction on a pro rata basis and own immediately after the transaction (or other transfer (in one transaction or the last of a series of related transactions) a majority of allthe issued and outstanding shares of capital stock, or substantially all, of the assets of the Company, or the (b) a transfer by one or more shareholders, in one transfer or several related transferstransfers (such as in response to a tender offer or in a collectively negotiated sale), of 50% of or more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer (each, transfer. In the event of a "Transaction"), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options and other awards under the Plan prior to the consummation of the Transaction: 6.1 The Option Outstanding options and other awards shall remain in effect in accordance with their terms. 6.2 The Option Outstanding options and other awards shall be converted into options to purchase stock or awards with respect to stock in one or more of the corporations, including the Company, that are the surviving or acquiring corporations in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options options or other awards shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) to be held by holders of shares of the Company following the Transaction. The converted Options options or other awards shall be vested only to the extent that the vesting requirements relating to the Options options or other awards granted hereunder have been satisfied. The Board of Directors of the Company may, in its sole discretion, accelerate the exercisability of options so that they are exercisable in full prior to being converted into options to purchase stock of the surviving or acquiring corporations in the Transaction. 6.3 The With respect to the options, the Company shall provide a period of a least 10 days before the completion of the Transaction during which the Option opions may be exercised, to the extent then exercisable, and upon the expiration of that period, the Option options shall immediately terminate. The Company may, its sole discretion, accelerate the exercisability of the Options options so that the Options is options are exercisable in full during that period. The Company intends to enter into a merger (the “Merger”) with a subsidiary of Aftermarket Enterprises Inc. (“Aftermarket”) pursuant to which the Company will become a wholly-owned subsidiary of Aftermarket and the shareholders of the Company will acquire a majority of the outstanding shares of common stock of Aftermarket. Notwithstanding anything in this Agreement Section 6, in connection with the Merger (a) AfterMarket will adopt the Plan, (b) consistent with Section 6.2 above, this Option shall convert into an options to purchase common stock of Aftermarket with the contrary, any proposed merger, acquisition, subsidiary merger, issuance number of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 shares subject to this Option and involves VitalStream, Inc. as a party shall not be deemed the exercise price to be a Transaction for purposes equitably adjusted consistent with the exchange ratio in the Merger (and the term of this Agreement. There Option not otherwise to be affected), and (c) Aftermarket shall be no adjustment made under have the right substitute for this Section 6 with respect to such transaction.Stock Option Agreement and agreement reflecting (a) and (b) above.1

Mergers, Reorganizations, Etc. In the event of a merger, consolidation, consolidation or plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation exchange to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction party or a series sale of related transactions) of all, all or substantially all, of the assets all of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer ’s assets (each, a "“Transaction"”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the TransactionOption: 6.1 4.2-1 The Option shall remain in effect in accordance with their its terms. 6.2 4.2-2 The Option shall be converted into options an option to purchase stock in one or more of the corporations, including the Company, corporation that are is the surviving or acquiring corporations corporation in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options option shall be determined by the Board of Directors of the CompanyBoard, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) corporation to be held by issued to holders of shares of the Company following the TransactionCompany. The converted Options Conversions shall be vested made without change in the total price applicable to the unexercised portion of the Option and with a corresponding adjustment in the Option price per share and shall neither (i) make the ratio, immediately after the event, of the Option price per share to the fair market value per share more favorable to the Optionee than that ratio immediately before the event nor (ii) make the aggregate spread, immediately after the event, between the fair market value of shares as to which the Option is exercisable and the Option price of such shares more favorable to the Optionee than that aggregate spread immediately before the event. Unless otherwise determined by the Board, the converted option shall be exercisable only to the extent that the vesting exercisability requirements relating to the Options Option have been satisfied. 6.3 4.2-3 The Company Board shall provide a 30-day period of a least 10 days before prior to the completion consummation of the Transaction during which the Option may be exercised, exercised to the extent then exercisable, and and, upon the expiration of that such 30-day period, the Option shall immediately terminateterminate to the extent not exercised. The Company Board may, in its sole discretion, accelerate the exercisability of the Options Option so that the Options it is exercisable in full during that such 30-day period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction for purposes of this Agreement. There shall be no adjustment made under this Section 6 with respect to such transaction.

Mergers, Reorganizations, Etc. In the event of a merger, consolidation, consolidation or plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation exchange to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction party or a series sale of related transactions) of all, all or substantially all, of the assets all of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer ’s assets (each, a "“Transaction"”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the TransactionOption: 6.1 4.2-1 The Option shall remain in effect in accordance with their its terms. 6.2 4.2-2 The Option shall be converted into options an option to purchase stock in one or more of the corporations, including the Company, corporation that are is the surviving or acquiring corporations corporation in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options option shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) corporation to be held by issued to holders of shares of the Company following the TransactionCompany. The converted Options Conversions shall be vested made without change in the total price applicable to the unexercised portion of the Option and with a corresponding adjustment in the Option price per share and shall neither (i) make the ratio, immediately after the event, of the Option price per share to the fair market value per share more favorable to the Optionee than that ratio immediately before the event nor (ii) make the aggregate spread, immediately after the event, between the fair market value of shares as to which the Option is exercisable and the Option price of such shares more favorable to the Optionee than that aggregate spread immediately before the event. Unless otherwise determined by the Board of Directors, the converted option shall be exercisable only to the extent that the vesting exercisabliity requirements relating to the Options Option have been satisfied. 6.3 4.2-3 The Company Board of Directors shall provide a 30-day period of a least 10 days before the completion consummation of the Transaction during which the Option may be exercised, exercised to the extent then exercisable, and and, upon the expiration of that such 30-day period, the Option shall immediately terminateterminate to the extent not exercised. The Company Board of Directors may, its in it sole discretion, accelerate the exercisability of the Options Option so that the Options it is exercisable in full during that such 30-day period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction for purposes of this Agreement. There shall be no adjustment made under this Section 6 with respect to such transaction.

Mergers, Reorganizations, Etc. In Subject to the provisions of Section 7 related to the acceleration of the exercisability of the Option in certain circumstances, in the event of a merger, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer (each, a "“Transaction"”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the Transaction: 6.1 The Option shall remain in effect in accordance with their terms. 6.2 The Option shall be converted into options to purchase stock in one or more of the corporations, including the Company, that are the surviving or acquiring corporations in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) to be held by holders of shares of the Company following the Transaction. The converted Options shall be vested only to the extent that the vesting requirements relating to the Options have been satisfied. 6.3 The Company shall provide a period of a least 10 days before the completion of the Transaction during which the Option may be exercised, to the extent then exercisable, and upon the expiration of that period, the Option shall immediately terminate. The Company may, its sole discretion, accelerate the exercisability of the Options so that the Options is exercisable in full during that period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction for purposes of this Agreement. There shall be no adjustment made under this Section 6 with respect to such transaction.