2.8 Cause is defined as follows: (a) if a Participant is a party to an employment, consulting, or severance agreement with the Company or one of its Subsidiaries in which Cause is defined, Cause has the meaning ascribed to it in such employment, consulting, or severance agreement, or (b) if a Participant is not party to an employment, consulting, or severance agreement with any member of the Company Group in which Cause is defined, Cause means (i) any act of theft, dishonesty, embezzlement or misappropriation against any member of the Company Group, (ii) any commission or conviction of, or guilty plea or plea of nolo contendere to, any felony or other crime involving moral turpitude, fraud or dishonesty, (iii) any failure to (A) substantially perform the duties of the Participants consulting agreement or the Participants terms of employment, as the case may be, or (B) cure any noncompliance, within thirty (30) days written notice of such noncompliance, with any material directive of the Board or any executive officer or with any established policy or procedure of any member of the Company Group, as applicable to the Participant, or (iv) any act or omission constituting willful or material breach of a fiduciary obligation or any malfeasance, negligence, incompetence or willful or gross misconduct relating to the business of the Company Group or the performance of the Participants duties of employment or service, in the case of clauses (i), (ii), (iii) and (iv), as determined by the Board in good faith. If, within sixty (60) days following a Participants termination of employment, the Company first discovers facts that would have established Cause for termination, and those facts were not known by the Company at the time of the termination, then the Board 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 Participants termination of employment will be considered a termination for Cause.
2.9 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.
2.10 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) or 14(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 fifty percent (50%) of the combined voting power of the Companys then-outstanding Voting Securities; provided, however, that in determining whether a Change in Control has occurred pursuant to this Section 2.10(a), the acquisition of Voting Securities in a Non-Control Acquisition (as hereinafter defined) shall not constitute a Change in Control. A Non-Control Acquisition shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) 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);