280G. Prior to the Closing Date, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) above.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Talos Energy Inc.), Agreement and Plan of Merger (Talos Energy Inc.)
280G. Prior The Company shall (a) use its reasonable best efforts to secure from each Person who has a right to any payments or benefits as a result of or in connection with the Transactions that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder) a waiver of such Person’s rights to some or all of such payments or benefits applicable to such Person (“Waived Section 280G Payments”) so that all remaining payments or benefits applicable to such Person shall not be deemed to be “excess parachute payments” that would not be deductible under Section 280G of the Code and (b) submit to all stockholders of the Company for approval any Waived Section 280G Payments, such that such payments and benefits shall not be deemed to be “parachute payments”. At least five (5) days prior to the Closing Date, (a) the Company shall use commercially reasonable efforts deliver to submit for approval by Purchaser evidence reasonably satisfactory to Purchaser that (i) a vote of the stockholders of the Company Stockholders, was solicited in conformance with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any Waived Section 280G Payments (the “280G Stockholder VoteApproval”), or (ii) the 280G Stockholder Approval was not obtained and as a consequence, such Waived Section 280G Payments shall not be made or provided to the extent they would cause any payments that constitute or would reasonably be expected amounts to constitute “parachute payments” with respect ”. At least five (5) days prior to obtaining the transactions waivers contemplated by this Agreement pursuant Section 6.15, and prior to seeking such stockholder approval, the Company shall provide drafts of such waivers and such stockholder approval materials to Purchaser for its review and comment (and shall consider any such comments in good faith), in order to ensure that Purchaser is satisfied that the stockholder approval will be sought in accordance with Section 280G of the Code (each, a “Parachute Payment”280G(b)(5)(B) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Treasury Regulation Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) above1.280G-1.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Proficient Auto Logistics, Inc), Contribution Agreement (Proficient Auto Logistics, Inc)
280G. Prior Not less than five (5) business days prior to the Closing DateClosing, (a) the Company Seller shall use commercially reasonable efforts submit to submit for approval by the Company Stockholdersa stockholder vote, in conformance with a manner that satisfies the stockholder approval requirements under Section 280G 280G(b)(5)(B) of the Code and the regulations thereunder (Treasury Regulations promulgated thereunder, the “280G Stockholder Vote”), right of any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G 280G(c) of the Code) to receive any and all payments (or other benefits) contingent on the consummation of the transactions contemplated by this Agreement (within the meaning of Section 280G(b)(2)(A)(i) of the Code) to the extent necessary so that no payment received by such “disqualified individual” shall be a “parachute payment” under Section 280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code). Such vote shall establish the disqualified individual’s right to the payment or other compensation, and the regulations promulgated thereunder) and which are irrevocably waived by such Seller shall obtain any required waivers or consents from the disqualified individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materialsvote. In addition, the Company Seller shall use commercially reasonable efforts provide adequate disclosure to obtain a waiver Seller stockholders that hold voting stock of the right all material facts concerning all payments to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable such disqualified individual that, but for such vote, could be deemed “disqualified individualsparachute payments” (as defined under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and the regulations promulgated thereunder. At least five (5) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) business days prior to the distribution vote, the Buyer and its counsel shall be given the right to review and comment on all documents required to be delivered to the Seller’s stockholders in connection with such vote and any required disqualified individual waivers or consents, and the Seller shall reflect all reasonable comments of the 280G Stockholder Vote materials Buyer thereon. Buyer and the 280G Waivers, the Company its counsel shall deliver to Parent complete be provided copies of all disclosure documents executed by the stockholders and other related documents that will be provided to the Company Stockholders disqualified individuals in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) abovevote.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.), Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.)
280G. Prior To the extent necessary to avoid the Closing Date, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with application of Section 280G of the Code and the Treasury regulations thereunder thereunder, no later than five (5) Business Days prior to the “280G Stockholder Vote”)Closing Date, TWG shall use reasonable best efforts to (i) obtain waivers (in form and substance reasonably satisfactory to Purchaser) from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that constitute or would reasonably be expected to constitute “parachute payments” with respect to within the transactions contemplated by this Agreement pursuant to Section 280G meaning of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and as to which are irrevocably waived by such individual under clause (b) hereof, (b) prior Person waives his or her rights to the distribution some or all of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote such payments and/or benefits (the “Waived 280G Waivers”), and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent ArrangementsBenefits”) are Parachute Payments, Parent applicable to such Person so that all remaining payments and/or benefits applicable to such Person shall provide not be deemed to be “excess parachute payments” (within the Company a written description of any Parent Arrangements and the value for purposes meaning of Section 280G of the Code of such Parent Arrangements reasonably in advance of Code), and (ii) following the Company’s request execution of the waivers under described in clause (bi), solicit the approval of the shareholders of TWG who are entitled to vote of any Waived 280G Benefits pursuant to a vote intended to meet the requirements of Section 280G(b)(5)(B) aboveof the Code and the Treasury regulations thereunder, in a manner and with a disclosure document that shall be in form and substance reasonably satisfactory to Purchaser. At least five (5) Business Days prior to obtaining any waiver or soliciting shareholder approval, TWG shall provide Purchaser with copies of all Section 280G-related documents, including any Section 280G analysis prepared by TWG, the shareholder disclosure document, waivers and shareholder consents, for Purchaser’s review and approval (which approval shall not be unreasonably withheld, conditioned or delayed) and shall consider all reasonable comments made thereto by Purchaser. Prior to the Closing Date, TWG shall deliver to Purchaser evidence that a vote of the shareholders of TWG who are entitled to vote was solicited in accordance with the foregoing provisions of this Section 5.26 and that either (A) the requisite number of votes were obtained with respect to the Waived 280G Benefits (the “Section 280G Approval”), or (B) that the Section 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.
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280G. Prior To the extent necessary to avoid the Closing Date, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with application of Section 280G of the Code and the regulations thereunder thereunder, as soon as reasonably practicable following the date of this Agreement, but in no event later than three (3) Business Days prior to the “280G Stockholder Vote”)Closing Date, the Company shall (a) use commercially reasonable best efforts to obtain waivers (in form and substance reasonably satisfactory to Acquiror) from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that constitute or would reasonably be expected to constitute “parachute payments” with respect to within the transactions contemplated by this Agreement pursuant to Section 280G meaning of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and as to which such Person waives his or her rights to some or all of such payments and/or benefits (the regulations promulgated thereunder“Waived 280G Benefits”) applicable to such Person so that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G of the Code), and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to following the distribution execution of the waivers described in clause (a), solicit the approval of the stockholders of Company of any Waived 280G Stockholder Vote materials, Benefits pursuant to a vote intended to meet the Company shall use commercially reasonable efforts to obtain a waiver requirements of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder VoteSection 280G(b)(5)(B) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder, in a manner and with a disclosure document that shall be in form and substance reasonably satisfactory to Acquiror. At least two (2) whose Parachute Payments would Business Days prior to obtaining any waiver or soliciting stockholder approval, the Company shall provide Acquiror with copies of all Section 280G-related documents, if any, including, without limitation, any Section 280G analysis prepared by the Company, the stockholder disclosure document, waivers and stockholder consents, for Acquiror’s review and approval (which approval shall not be subject unreasonably withheld, conditioned or delayed) and shall accept all reasonable comments made thereto by Acquiror. Prior to the 280G Stockholder Vote (the “280G Waivers”)Closing Date, and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waiversif applicable, the Company shall deliver to Parent complete copies Acquiror evidence that a vote of all disclosure the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.6 and other related documents that will be provided either (A) the requisite number of votes were obtained with respect to the Company Stockholders in connection with the Waived 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and Benefits (the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of Approval”), or (B) that the Code of such Parent Arrangements reasonably in advance of Section 280G Approval was not obtained, and, as a consequence, the Company’s request of the waivers under clause (b) aboveWaived 280G Benefits shall not be made or provided.
Appears in 1 contract
Samples: Agreement and Plan of Merger (CF Finance Acquisition Corp. III)
280G. Prior to Promptly following the Closing Dateexecution of this Agreement, (a) the Company shall use commercially its reasonable best efforts to submit for approval by the Company Stockholdersobtain and deliver to Parent a waiver agreement, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated form approved by this Agreement pursuant to Section 280G of the Code Parent (each, a “Parachute Payment280G Waiver”) on behalf of ), from each Person who the Company, in consultation with Parent, reasonably believes is a “disqualified individual” (as defined in within the meaning of Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual who might otherwise receive or have the right or entitlement to receive a parachute payment under clause (b) hereof, (b) prior to the distribution Section 280G of the Code, unless the requisite approval of the holder of Company Capital Stock of such parachute payments is obtained pursuant to this section. Promptly following the delivery by the Company to Parent of each 280G Stockholder Vote materialsWaiver described in this section, the Company shall use commercially reasonable efforts submit to obtain a waiver the holders of the right to receive or retain any Parachute Payment Company Capital Stock for approval (in a manner reasonably satisfactory to Parent) by such number of shares of Company Capital Stock as is required by the absence terms of Section 280G(b)(5)(B) of the Code any payments or benefits that are subject to a 280G Stockholder Vote) from each of Waiver and that the applicable Company, in consultant with Parent, determines may separately or in the aggregate, constitute “disqualified individualsparachute payments” (as defined under within the meaning of Section 280G of the Code and the regulations promulgated thereunder), such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code, and prior to the Effective Time the Company shall deliver to Parent evidence reasonably satisfactory to Parent (i) whose Parachute Payments would be that a vote of holders of Company Capital Stock was solicited in conformance with Section 280G and the regulations promulgated thereunder (the “280G Vote”), and the requisite approval of the holders of Company Capital Stock was obtained with respect to any payments or benefits that were subject to the such 280G Stockholder Vote (the “280G WaiversApproval”), or (ii) that the 280G Approval was not obtained and (c) as a consequence, that such “parachute payments” shall not be made or provided, pursuant to the 280G Waivers of those payments or benefits which were executed by the affected individuals prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) aboveVote.
Appears in 1 contract
280G. Prior to To the Closing Dateextent applicable, (a) the Company shall use commercially reasonable efforts to submit for approval by to its equityholders in accordance with the Company Stockholders, in conformance with requirements of Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”280G(b)(5)(B) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunderpursuant thereto (including seeking to obtain any necessary waiver from any affected individual) and which with respect to any payments that potentially could be excess parachute payments (such payments that are irrevocably actually waived by such individual under clause (b) hereofthe affected individual, (b) prior to the distribution of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G WaiversWaived Benefits”)) so that, and (c) prior if such approval is received, payments by the Company to the distribution any of its employees arising in whole or in part as a result of the 280G Stockholder Vote materials and transactions contemplated hereby based on arrangements in place at the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and Closing (other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any than arrangements entered into at the direction of Parent on or between Parent and its Affiliates, on after the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”Closing Date) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of will not be characterized as parachute payments under Section 280G of the Code Code. Prior to soliciting such waivers and consent, the Company shall provide drafts of such waivers and disclosure, all 280G analysis calculations performed in connection with the transactions contemplated hereby, and approval materials to Parent Arrangements reasonably in advance for its review, comment and approval prior to soliciting such waivers and soliciting such consent. If any of the Company’s request 280G Waived Benefits fail to be approved as contemplated above, such 280G Waived Benefits shall not be made or provided. To the extent applicable, prior to the Closing Date, the Company shall to deliver to Parent evidence reasonably acceptable to Parent that a vote of holders of the waivers equity securities of the Company was solicited in accordance with the foregoing provisions of this Section 7.16 and that either (i) the requisite number of votes of holders of the equity interests of the Company was obtained with respect to the 280G Waived Benefits (the “280G Approval”) or (ii) the 280G Approval was not obtained, and, as a result, no 280G Waived Benefits shall be made or provided. Notwithstanding the foregoing, in no event shall this Section 7.16 be construed to require the Company to compel any Person to waive any existing rights under clause (b) aboveany Contract that such Person has with the Company and in no event shall the Company be deemed in breach of this Section 7.16 if any such Person refuses to waive any such rights.
Appears in 1 contract
280G. Prior If any Person who is a “disqualified individual” (within the meaning of Section 280G of the Code and the Department of Treasury regulations promulgated thereunder) with respect to any Target Company may receive any payment(s) or benefit(s) that could constitute parachute payments under Section 280G of the Closing DateCode in connection with the Contemplated Transactions, then: (a) the Company Target Companies shall seek and use commercially reasonable efforts to obtain a waiver from each such “disqualified individual” (a “Parachute Payment Waiver”); and (b) the Target Companies shall prepare and distribute to its equityholders a disclosure statement describing all potential parachute payments and benefits that may be received by such disqualified individual(s) that execute a Parachute Payment Waiver and shall submit such payments to its equityholders for approval approval, in each case, in accordance with the requirements of Section 280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder, such that, if approved by the Company Stockholdersrequisite majority of the equityholders, such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code (the foregoing actions, a “280G Vote”). Prior to the Closing, if a 280G Vote is required, the Target Companies shall deliver to Buyer evidence reasonably satisfactory to Buyer, (i) that a 280G Vote was solicited in conformance with Section 280G of the Code Code, and the regulations thereunder requisite equityholder approval was obtained with respect to any payments and/or benefits that were subject to the Target Companies equityholder vote (the “Section 280G Stockholder VoteApproval”)) or (ii) that the Section 280G Approval was not obtained and as a consequence, any payments that constitute or would reasonably be expected pursuant to constitute the Parachute Payment Waiver, such “parachute payments” with respect shall not be made or provided. The form of the Parachute Payment Waiver, the disclosure statement, any other materials to be submitted to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders Target Companies; equityholders in connection with the Section 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, Approval and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, calculations related to the foregoing (the “Section 280G Soliciting Materials”) shall be subject to a minimum of three business days (the “Review Period”) by Buyer, which approval shall not be unreasonably withheld. To the extent Buyer (or its Affiliates) enters into any arrangements entered into at that would otherwise qualify as parachute payments, such arrangements shall be disregarded for purposes herein unless the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) Target Companies are Parachute Payments, Parent shall provide to the Company provided with a written description of any Parent Arrangements (including all material terms and valuations) by Buyer prior to the value for purposes of Section 280G end of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) above.Review Period.
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280G. Prior to the Closing Date, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materials, the The Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any payments and/or benefits that reasonably could constitute “parachute payments” under Section 280G of the Code and regulations promulgated thereunder (a “Parachute Payment (in the absence of the 280G Stockholder VoteWaiver”) from each of the applicable person who would be a “disqualified individualsindividual” (as defined under within the meaning of Section 280G of the Code and the regulations promulgated thereunder) whose and who reasonably might otherwise receive, have received, or have the right or entitlement to receive any payment or benefit that would, absent shareholder approval, be excess parachute payments under Section 280G of the Code, and the Company shall have delivered each such Parachute Payments Payment Waiver to Parent on or before the date on which the shareholder vote pursuant to the immediately following sentence is conducted. Prior to the Closing Date, the Company shall use commercially reasonable efforts to take all actions necessary to conduct a shareholder vote in accordance with the requirements of Section 280G(b)(5) of the Code and Treasury Regulations section 1.280G-1, Q&A with respect to any and all payments and/or benefits subject to a Parachute Payment Waiver that, in the absence of the executed Parachute Payment Waivers by the affected persons above, might otherwise result, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reason of Section 280G of the Code or that would be subject to an excise tax by reason of Section 4999 of the 280G Stockholder Vote (the “280G Waivers”), and (c) prior Code. Prior to the distribution of the 280G Stockholder Vote materials and the 280G WaiversClosing Date, the Company shall deliver to the Parent complete copies written certification setting forth the results of all any shareholder vote. Any form of Parachute Payment Waiver, disclosure statement and other related documents that will shareholder consent prepared by the Company and used in connection with any shareholder vote shall be provided to Parent at least five (5) Business Days in advance of distribution to the Company Stockholders in connection disqualified individuals or Stockholders, as applicable, and Parent shall be provided with the 280G Stockholder Vote in a manner providing Parent with sufficient time reasonable opportunity to review and comment thereon, thereon and the Company shall consider all any reasonable comments of Parent in good faithwith respect to the same as are provided by Parent. The parties acknowledge that, that this Section 6.13 shall not apply to the extent any arrangements entered into at the direction discretion of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments), with respect to the period following the Closing, unless such Parent shall provide Arrangements have been disclosed to the Company a written description at least five (5) Business Days prior to the Closing Date, so that, for the avoidance of any Parent Arrangements and the value for purposes of doubt, compliance with this Section 280G of the Code of 6.13 shall be determined as if such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) abovethat are not so disclosed had not been entered into.
Appears in 1 contract
280G. Prior To the extent that any "disqualified individual" (within the meaning of Section 280G(c) of the Code and the regulations thereunder) has the right to receive any payments or benefits that reasonably would be expected to be deemed to constitute "parachute payments" (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), then, the Company will, prior to the Closing Date, (a) solicit from each Person who the Company shall use commercially reasonable efforts reasonably believes is, with respect to submit for approval by the Company StockholdersCompany, in conformance with a "disqualified individual," a waiver of such disqualified individual's rights to some or all of such payments or benefits (the "Waived 280G Benefits"), so that any remaining payments and/or benefits will not be deemed to be "excess parachute payments" (within the meaning of Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”thereunder), any payments that constitute or would reasonably be expected to constitute “parachute payments” and (b) thereafter, with respect to each individual who executes the transactions contemplated by this Agreement pursuant waiver described in clause (a), submit to Section 280G a vote of the Code (eachequityholders of the Company entitled to vote on such matters, a “Parachute Payment”in the manner intended to satisfy the requirements under Section 280G(b)(5) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by , the right of any such disqualified individual under clause (b) hereof, (b) prior to receive the distribution of the Waived 280G Stockholder Vote materials, Benefits. In no event will this Section 6.12 be construed to require the Company shall use commercially reasonable efforts to obtain a waiver of compel any disqualified individual to waive any existing rights under any Contract or arrangement that such disqualified individual has with the right to receive Company or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”)its Affiliates, and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, in no event will the Company shall deliver be deemed to be in breach of this Section 6.12 if any such disqualified individual refuses to waive any such rights. The Company will provide drafts of such waivers and disclosure and approval materials to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to for its review and comment thereonno later than three (3) Business Days prior to soliciting such waivers and soliciting such approval, and the Company shall consider all reasonable such comments of Parent in good faith. The parties acknowledge that, faith and incorporate all such comments into such waivers and disclosure and applicable materials to the extent reasonable. To the extent that any arrangements Contract, agreement or plan will be entered into by, or at the direction of, Parent and/or any of Parent or between Parent and its Affiliates, on the one hand, Affiliates and a disqualified individual, on individual at or prior to the other hand (“Parent Arrangements”) are Parachute PaymentsClosing, Parent shall provide a copy of such Contract, agreement or plan to the Company a written description of any Parent Arrangements at least ten (10) Business Days before the Closing and cooperate with the Company in good faith in order to calculate or determine the value (for purposes of Section 280G of the Code Code) of such Parent Arrangements reasonably any payments or benefits granted or contemplated therein that may constitute, individually or in advance the aggregate with other payments and/or benefits, "parachute payments". If any of the Company’s request Waived 280G Benefits fail to be approved as contemplated above, such Waived 280G Benefits will not be paid or provided. To the extent applicable, prior to the Closing Date, the Company will deliver to Parent evidence reasonably acceptable to Parent that a vote of the waivers under clause equityholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.12 and that either (bi) abovethe requisite number of votes of the equityholders of the Company was obtained with respect to the Waived 280G Benefits (the "280G Approval"), or (ii) the 280G Approval was not obtained, and, as a result, no Waived 280G Benefits will be made or provided.
Appears in 1 contract
280G. Prior to No later than the Closing Datetwelfth (12th) day following the date of this Agreement, (a) the Company shall use commercially reasonable efforts obtain a waiver of the right to submit for approval by the Company Stockholders, in conformance with receive payments that could constitute “parachute payments” under Section 280G of the Code and the regulations promulgated thereunder (a “Parachute Payment Waiver”) from each Person whom the “280G Stockholder Vote”)Company and/or Parent reasonably believes is, any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (eachCompany and its Subsidiaries, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in within the meaning of Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materials, whom the Company shall use commercially reasonable efforts to obtain a waiver of and/or Parent believes might otherwise receive, have received, or have the right or entitlement to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined parachute payment under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereonCode, and the Company shall consider all reasonable comments deliver each such Parachute Payment Waiver to Parent on or before the Closing. No later than the fifteenth (15th) day after the date of Parent in good faiththis Agreement, the Company shall hold a meeting of its stockholders to vote upon the 280G Shareholder Vote (as defined below); provided that the Company may, at the time during such meeting, adjourn such meeting to another date and time for any reason. The parties acknowledge that, Company shall use its reasonable best efforts to obtain the extent any arrangements entered into at the direction approval by such number of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to shareholders of the Company a written description as is required by the terms of any Parent Arrangements and Section 280G(b)(5)(B) of the value for purposes Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and/or benefits provided pursuant to contracts or arrangements that, in the absence of the executed Parachute Payment Waivers by the affected Persons herein, might otherwise result, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be obtained in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations (the “280G Shareholder Vote”). The Company shall forward to Parent Arrangements reasonably in advance at least seven (7) days prior to the date on which the Company intends to obtain the Parachute Payment Waivers, and allow Parent to review and comment upon, prior to submission to the shareholders of the Company’s request , copies of all documents (including any 280G analysis) prepared for purposes of complying with this provision and shall consider any such comments in good faith. The Company shall require such vote with respect to approval be received at least one day prior to Closing and use its reasonable best efforts to collect all votes by such date. For purposes of this Section 6.9, if the waivers under clause (b) abovelast day of any such time period set forth herein is a non-Business Day, the period shall end on the next succeeding Business Day.
Appears in 1 contract
280G. Prior to the Closing DateEffective Time, the Company will (ai) submit to all Persons entitled to vote (as determined in accordance with the Treasury Regulations under Code Section 280G (the “280G Vote”)) the material facts (the “280G Disclosure”) concerning all payments and benefits that the Company (after consultation with Buyer) reasonably believes, in the absence of shareholder approval of such payments and benefits, could be “excess parachute payments” within the meaning of Code Section 280G(b)(1) (“Potential Parachute Payments”), in accordance with Code Section 280G(b)(5)(B), and (ii) solicit the approval and consent of all such Persons with respect to the Potential Parachute Payments. Prior to the 280G Vote, the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of cause each “disqualified individual” (as defined in Section 280G 280G(c) of the Code) who might receive any Potential Parachute Payments to execute and deliver to the Company an agreement to waive his or her Potential Parachute Payments unless the shareholders of the Company approve such payments in accordance with the requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder) thereunder (a “280G Waiver”), and which are irrevocably waived by such individual under clause (b) hereof, (b) 280G Waiver shall continue to be in effect immediately prior to the distribution Closing. Any Potential Parachute Payments for which the requisite shareholder approval under Code Section 280G(b)(5)(B) was not obtained shall, in accordance with the 280G Waivers entered into by the affected individuals, not be paid or provided for in any manner. The Company agrees to provide Buyer written drafts of the 280G Stockholder Vote materialsWaiver, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code Disclosure, and the regulations promulgated thereunder) whose Parachute Payments would be subject to other documents for the 280G Stockholder Vote (in advance of delivering such documents to the “280G Waivers”)disqualified individuals and the Company’s shareholders, as applicable, and (c) prior allow Buyer a reasonable opportunity to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related provide reasonable comments on such documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all incorporate any such reasonable comments of Parent in good faith. The parties acknowledge that, to into the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) abovedocuments.
Appears in 1 contract
280G. Prior The Company shall, and shall cause the Company Subsidiaries to, use its commercially reasonable efforts (which shall in no event require payment of additional consideration to any Person) as soon as practicable after the date hereof (but in no event later than the second (2nd) Business Day immediately prior to the Closing Date), obtain from each Person to whom any payment or benefit is required or proposed to be made that could constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code) a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived Benefit”) so that all remaining payment or benefit applicable to such Person shall not be deemed to be a parachute payment that would not be deductible under Section 280G of the Code, and to accept in substitution for the Waived Benefit the right to receive such remaining payment or benefit only if approved by the Stockholders in a manner that complies with Section 280G(b)(5)(B) of the Code. Each such waiver shall identify the specific Waived Benefit and shall provide that if such Stockholder approval is not obtained, such payments shall not be made and such Persons shall have no right or entitlement with respect thereto. As soon as practicable thereafter but in any event prior to the Closing Date, (a) to the extent such waivers are obtained, the Company shall use commercially reasonable efforts to submit for seek Stockholder approval by the Company Stockholders, in conformance a manner that complies with Section 280G 280G(b)(5)(B) of the Code of all such payments that have been conditioned on the receipt of such approval. At least two (2) business days prior to obtaining such waivers and seeking approval from the Stockholders, the determination of which payments may be deemed to constitute parachute payments, the form of each such waiver, and the regulations thereunder disclosure and other circumstances of any such Stockholder approval shall be provided to Parent for Parent’s review and comment, and the Company (and its advisors) shall reasonably consider such comments. To the “280G Stockholder Vote”)extent that Parent (or its Affiliates) wish to enter into, any payments that constitute or would reasonably be expected cause the Company to constitute “parachute payments” enter into, additional arrangements with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of each Company’s “disqualified individualindividuals” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (bCode) prior to the distribution of Closing Date with respect to services to be provided prior to or following the 280G Stockholder Vote materialsMerger, such arrangements shall be disclosed to the Company at least seven (7) business days prior to the Closing Date. Prior to the Closing Date, the Company shall use commercially reasonable efforts deliver reasonably satisfactory evidence to obtain a waiver of Parent that either (a) the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject requisite vote was obtained with respect to the 280G Stockholder Vote Waived Benefit (the “280G WaiversApproval”), and ) or (cb) prior to the distribution of the 280G Stockholder Vote materials and the 280G WaiversApproval was not obtained and, as a consequence, the Company Waived Benefit shall deliver to Parent complete copies of all disclosure and other related documents that will not be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereonretained, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent made or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) aboveprovided.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Owens & Minor Inc/Va/)
280G. No later than five (5) Business Days prior to the Closing, the Company will (i) submit to all Persons entitled to vote (as determined in accordance with the Treasury Regulations under Code Section 280G (the “280G Vote”)) the material facts (the “280G Disclosure”) concerning all payments and benefits that the Company (after consultation with Buyer following provision to Buyer of the Company’s calculations and supporting documentation) reasonably believes, in the absence of shareholder approval of such payments and benefits, could be “excess parachute payments” within the meaning of Code Section 280G(b)(1) (“Potential Parachute Payments”), in accordance with Code Section 280G(b)(5)(B), and (ii) solicit the approval and consent of all such Persons with respect to the Potential Parachute Payments. Prior to the Closing Date280G Vote, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of cause each “disqualified individual” (as defined in Section 280G 280G(c) of the Code) who might receive any Potential Parachute Payments to execute and deliver to the Company an agreement to waive his or her Potential Parachute Payments unless the shareholders of the Company approve such payments in accordance with the requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder) thereunder (a “280G Waiver”), and which are irrevocably waived by such individual under clause (b) hereof, (b) 280G Waiver shall continue to be in effect immediately prior to the distribution Closing. Any Potential Parachute Payments for which the requisite shareholder approval under Code Section 280G(b)(5)(B) was not obtained shall, in accordance with the 280G Waivers entered into by the affected individuals, not be paid or provided for in any manner. The Company agrees to provide Buyer written drafts of the 280G Stockholder Vote materialsWaiver, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code Disclosure, and the regulations promulgated thereunder) whose Parachute Payments would be subject to other documents for the 280G Stockholder Vote (in advance of delivering such documents to the “280G Waivers”)disqualified individuals and the Company’s shareholders, as applicable, and (c) prior allow Buyer a reasonable opportunity to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related provide reasonable comments on such documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all incorporate any such reasonable comments of Parent in good faith. The parties acknowledge that, to into the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) abovedocuments.
Appears in 1 contract
280G. Prior To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) has the right to receive any payments or benefits that are contingent (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that could be deemed to constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder) (the “Section 280G Payments”), then, prior to the Closing the Company shall, or shall cause the applicable Affiliate to, use commercially reasonable best efforts to (i) solicit and obtain from each individual who is, as of the Closing Date, a “disqualified individual” a waiver of such disqualified individual’s rights, subject to the approval described in clause (aii) below, to some or all of such payments or benefits (the Company “ Waived 280G Benefits”) so that any remaining payments or benefits shall use commercially reasonable efforts not be deemed to submit for approval by be “excess parachute payments” (within the Company Stockholders, in conformance with meaning of Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”thereunder), any payments that constitute or would reasonably be expected to constitute “parachute payments” and (ii) with respect to each individual who executes the transactions contemplated by this Agreement pursuant waiver described in clause (i), submit to a vote in the manner required under Section 280G of the Code (each, a “Parachute Payment”280G(b)(5)(B) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder, along with adequate disclosure intended to satisfy such requirements (including Q&A-7 of Treasury Regulations § 1.280G-1), the right of any such “disqualified individual” to receive the Waived 280G Benefits. In connection with the foregoing, Purchaser (a) will, no later than ten (10) Business Days prior to the Closing Date, provide the Company with any contract, agreement or plan entered into by the Purchaser (or at the direction of the Purchaser) and which are irrevocably waived by a disqualified individual (or reasonably be expected to be entered into at or prior to the Closing Date) the (the “Purchaser Arrangements”) to determine whether any payments made or to be made, or benefits granted or to be granted, pursuant to such individual under clause Purchaser Arrangements could reasonably be considered to be “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (b) hereof, shall cooperate with the Company in good faith to provide the Company with information necessary for the Company to make such determination and for the Company to prepare the required disclosure at least five (b5) Business Days prior to the distribution of Company obtaining the 280G Stockholder Vote materials, waivers and soliciting the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment vote as set forth in this Section 5.20. At least one (in the absence of the 280G Stockholder Vote1) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) Business Day prior to the distribution of the 280G Stockholder Vote materials and the 280G WaiversClosing Date, the Company shall deliver to Parent complete copies Purchaser documents evidencing the results of all disclosure such vote. If any of the Waived 280G Benefits fail to be approved as contemplated above, such Waived 280G Benefits shall not be made or provided. At least three (3) Business Days prior to soliciting such waivers and other related documents that will be provided to soliciting such shareholder approval as contemplated in this Section 5.20, the Company Stockholders in connection with shall provide to Purchaser drafts of such waivers and such shareholder approval materials (including the 280G Stockholder Vote in a manner providing Parent with sufficient time to calculations and analysis supporting such documentation)for Purchaser’s review and comment thereonreasonable opportunity to comment, and the Company shall consider all reasonable comments of Parent in good faithfaith consider any such comments. The parties acknowledge that, Nothing contained in this Section 5.20 shall be deemed to require (i) the extent Company to obtain a waiver from any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a “disqualified individual, on the other hand ” or (“Parent Arrangements”ii) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G specific outcome of the Code of such Parent Arrangements reasonably vote described in advance of the Company’s request of the waivers under clause (b) abovethis Section 5.20.
Appears in 1 contract
Samples: Business Combination Agreement (TradeUP Global Corp)
280G. At least ten (10) Business Days prior to the Closing, the Company will use reasonable best efforts to obtain, from each Person to whom any payment or benefit is required or proposed to be made that could constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code) a written agreement waiving such Person’s right to receive or retain some or all of such payment or benefit (the “Waived Benefit”) so that all remaining payments or benefits applicable to such Person shall not be deemed to be a “parachute payment” that would not be deductible under Section 280G of the Code. As soon as practicable thereafter but in any event at least three (3) Business Days prior to the Closing, the Company shall submit for the approval of the stockholders of the Company entitled to vote on such matter, all payments and benefits that have been conditioned on the receipt of such approval (along with adequate disclosure intended to satisfy the requirements of Section 280G(b)(5)(B)(ii) of the Code and any regulations promulgated thereunder). At least five (5) Business Days prior to soliciting such waivers and approval described herein, the Company shall provide its analyses, supporting documentation and drafts of such waivers, disclosure and approval materials to Acquiror for its review and comment, which comments shall be considered by the Company in good faith. Prior to the Closing DateClosing, (a) the Company shall use commercially reasonable efforts deliver to submit for approval by Acquiror evidence reasonably acceptable to Acquiror that a vote of holders of the equity interests of the Company Stockholders, was solicited in conformance accordance with the requirements of Section 280G of the Code and the regulations thereunder foregoing provisions of this Section 6.7 and that either (i) the requisite number of votes approving the Waived Benefit was obtained from the holders of the equity interests of the Company (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute PaymentApproval”) on behalf of each “disqualified individual” or (as defined in Section 280G of the Code and the regulations promulgated thereunderii) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materialsApproval was not obtained, the Company and, as a result, no Waived Benefit shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) above.made or
Appears in 1 contract
280G. Prior to the First Closing Date, (a) the Company Parent shall use commercially reasonable best efforts to cause each applicable Acquired Company and Total Care Entity to submit and recommend for approval by to a stockholder vote the Company Stockholders, in conformance with Section 280G right of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, Person who is a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G 280G(c) of the Code) of the applicable Acquired Company and Total Care Entity (a “Disqualified Individual”) to receive or retain, as applicable, any payments and benefits that may be considered “parachute payments” within the meaning of Section 280G(b)(2) of the Code (“Parachute Payments”) to the extent necessary so that no payment received by such Disqualified Individual would be an “excess parachute payment” under Section 280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code), in a manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and the regulations Treasury Regulations promulgated thereunderthereunder (such vote, the “280G Vote”). Prior to obtaining the 280G Vote, and at least one (1) and which are irrevocably waived by such individual under clause (b) hereof, (b) week prior to the distribution First Closing Date, Parent shall provide Buyer with a draft of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject all material documents related to the 280G Stockholder Vote (the Vote, including any disclosure documents and “280G Waivers”), disqualified individual” waivers and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company Buyer shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing provide Parent with sufficient time all information and documents reasonably necessary to review and comment thereon, and the Company shall consider all reasonable comments of allow Parent in good faith. The parties acknowledge that, to the extent determine whether any arrangements payments made or to be made or benefits granted or to be granted pursuant to any employment agreement or Contract entered into at the direction or negotiated by Buyer or any of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the together with all other hand (“Parent Arrangements”) are Parachute Payments could reasonably be considered to be Parachute Payments, . Parent shall provide cause each applicable Acquired Company and Total Care Entity to the Company a written description of incorporate into such documents any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) abovereasonable comments that are timely provided by Buyer.
Appears in 1 contract
280G. Prior to the Closing DateClosing, (a) the Company shall use commercially reasonable best efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a) obtain an executed waiver from each Person who is a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunderCode) and which are irrevocably waived by of that portion of any payments or economic benefits received or payable to such individual under clause (b) hereofPerson that could, (b) prior to the distribution of the 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive individually or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable aggregate, constitute “disqualified individualsparachute payments” (as defined under in Section 280G(b) of the Code) (the “Waived 280G Benefits”) and (b) solicit the approval of its equityholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the regulations promulgated Treasury Regulations thereunder. The Company shall forward to Parent at least three (3) whose Parachute Payments would be subject days prior to distribution to the 280G Stockholder Vote intended recipients, copies of all documents prepared by the Company in connection with this Section 5.8 (the “280G Waivers”)including supporting analysis and calculations, form of waiver agreement, equityholder consent and disclosure statement) for Parent’s review and comment, and (c) the Company shall incorporate all reasonable comments received from Parent on such documents prior to the distribution of to the 280G Stockholder Vote materials and intended recipients. Prior to the 280G WaiversClosing, the Company shall deliver to Parent complete copies evidence of all disclosure and other related documents that will be provided the results of such vote. Such equityholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Company Stockholders in connection with the Waived 280G Stockholder Vote in a manner providing Benefits, such that if such equityholder approval is not obtained, no portion of the Waived 280G Benefits shall be paid, payable, received or retained. For the avoidance of doubt, with respect to any Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent Arrangement (defined as any arrangements arrangement agreed upon or entered into by, or at the direction of of, Parent or between Parent and and/or its Affiliates, on the one hand, and a “disqualified individual, ,” on the other hand (“Parent Arrangements”) are Parachute Paymentshand, Parent shall provide on or prior to the Closing Date) of which the Company a written description of any is aware prior to the Closing Date, the Company shall cooperate with Parent Arrangements and in good faith to calculate or determine the value (for purposes of Section 280G of the Code Code) of any payments or benefits granted or contemplated therein that could reasonably be expected to constitute a “parachute payment” under Section 280G of the Code, and incorporate such Parent Arrangements reasonably in advance of (defined as any arrangement agreed upon or entered into by, or at the Company’s request of direction of, Parent and/or its Affiliates, on the waivers under clause (bone hand, and a “disqualified individual,” on the other hand, on or prior to the Closing Date) into its calculations and 280G equityholder approval process described above.
Appears in 1 contract
Samples: Registration Rights Agreement (Monterey Capital Acquisition Corp)
280G. Prior The Company shall prior to the Closing Date, seek to obtain the approval of the Stockholders (ain accordance with the requirements of Section 280G(b)(5)(B) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder promulgated pursuant thereto) with respect to any payments to be made by the Company and its Subsidiaries with respect to arrangements in place at the Closing that would, absent Stockholder approval (the “280G Stockholder VoteApproval”), any be excess parachute payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to as a result of the transactions contemplated hereby. Such Stockholder Approval shall include any contract, agreement, or plan entered into by this Agreement pursuant to Section 280G Parent, the Company or any of the Code (each, their Affiliates and a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code Code) in connection with the transactions contemplated by this Agreement on or before the Closing Date, provided that Parent shall provide a copy of such contract, agreement or plan to the Company and the regulations promulgated thereunder) Representative at least 15 days before the Closing Date and which are irrevocably waived by such individual under clause shall cooperate with the Company in good faith in order to calculate or determine the value (b) hereof, (b) prior to for the distribution purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G of the Code. Prior to such Stockholder Vote materialsapproval, the Company shall use commercially reasonable efforts to obtain a waiver waivers from such individuals, such that unless such payments are approved by the Stockholders to the extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the right to receive or retain any Parachute Payment (in the absence Code, no such payments shall be made. Copies of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”)all disclosures, waivers, consent, and (c) prior to the distribution of the 280G Stockholder Vote voting materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders used in connection with the 280G Stockholder Vote foregoing shall be provided to Parent at least three (3) Business Days in advance of distribution to stockholders or the disqualified individuals, as applicable, and Parent shall be provided with a manner providing Parent with sufficient time reasonable opportunity to review and comment thereon, thereon (and the Company shall consider all will include in such materials any reasonable comments of Parent in good faithprovided by Parent). The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent Company shall provide to Parent at or prior to the Effective Time evidence reasonably satisfactory to Parent that the Company a written description has satisfied its obligations under this Section 10.02. For the avoidance of doubt, the Closing shall not be conditioned on such vote described in this Section 10.02 occurring or receiving Stockholder approval for any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) abovepayments.
Appears in 1 contract
280G. Prior If applicable, prior to the Closing DateClosing, Sellers shall, or shall cause its applicable Subsidiary or Affiliate to, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder secure from any Person who (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, i) is a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunderCode) and which are irrevocably waived (ii) has a right or potential right to any payments and/or benefits in connection with the transactions contemplated by this Agreement that would be reasonably likely to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of a portion of such individual under clause Person’s rights to any such payments and/or benefits, such that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “parachute payments” pursuant to Section 280G of the Code (the “Waived 280G Benefits”), and (b) hereoffor all such Persons who executed such waivers, (b) prior submit the Waived 280G Benefits for shareholder approval, to the distribution extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code. No later than five (5) Business Days before the Closing Date, Sellers shall provide to Parent or its counsel drafts of the consent, waiver, disclosure statement and calculations necessary to effectuate the approval process and shall incorporate in good faith all of Parent’s reasonable comments. Prior to the Closing Date, Sellers shall deliver to Parent evidence reasonably satisfactory to Parent that (x) a shareholder vote approving the Waived 280G Stockholder Vote materials, the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment (Benefits was received in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under conformance with Section 280G of the Code and the regulations promulgated thereunder, or (y) whose Parachute Payments would be subject such requisite shareholder approval has not been obtained with respect to the Waived 280G Stockholder Vote (Benefits, and, as a consequence, the “Waived 280G Waivers”)Benefits have not been and shall not be paid or provided. Notwithstanding the foregoing, and (c) prior to the distribution extent that any Contract, agreement, term sheet, plan or other arrangement (whether written or unwritten) is entered into by Parent or any of its Affiliates and a “disqualified individual” (as defined in Section 280G of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders Code) in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, transactions contemplated by this Agreement prior to the extent any arrangements entered into at Closing Date (the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments), Parent shall provide a copy of such Contract, agreement, term sheet, plan or summary of such other arrangement to Sellers at least ten (10) Business Days before the Company a written description of any Parent Arrangements Closing Date and shall cooperate with Sellers and their counsel in good faith in order to calculate or determine the value (for purposes of Section 280G of the Code Code) of such any payments or benefits granted or contemplated therein, which may be paid, granted or provided in connection with the transactions contemplated by this Agreement that could constitute, individually or in the aggregate with any other payment or benefit, a “parachute payment” under Section 280G of the Code; provided that, in any event, Seller’s or its applicable Subsidiary’s or Affiliate’s failure to include the Parent Arrangements reasonably in advance the shareholder approval materials described herein due to Parent’s breach of its obligations set forth herein shall not result in a breach of this Section 6.15. In no event shall Sellers be deemed in breach of this Section 6.15 if any “disqualified individual” refuses to execute a waiver or the Company’s request of the waivers under clause (b) aboveshareholder vote is not obtained due to applicable shareholders not approving such Waived 280G Benefits.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (ManpowerGroup Inc.)
280G. Prior To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) has the right to receive any payments or benefits that are contingent (within the meaning of Section 280G of the Code) on the transactions contemplated by this Agreement and that could be deemed to constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder) (the “Section 280G Payments”), then, prior to the Closing the Company shall, or shall cause the applicable Affiliate to, use commercially reasonable best efforts to (i) solicit and obtain from each individual who is, as of the Closing Date, a “disqualified individual” a waiver of such disqualified individual’s rights, subject to the approval described in clause (aii) below, to some or all of such payments or benefits (the Company “Waived 280G Benefits”) so that any remaining payments or benefits shall use commercially reasonable efforts not be deemed to submit for approval by be “excess parachute payments” (within the Company Stockholders, in conformance with meaning of Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”thereunder), any payments that constitute or would reasonably be expected to constitute “parachute payments” and (ii) with respect to each individual who executes the transactions contemplated by this Agreement pursuant waiver described in clause (i), submit to a vote in the manner required under Section 280G of the Code (each, a “Parachute Payment”280G(b)(5)(B) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder, along with adequate disclosure intended to satisfy such requirements (including Q&A-7 of Treasury Regulations § 1.280G-1), the right of any such “disqualified individual” to receive the Waived 280G Benefits. In connection with the foregoing, Purchaser (a) will, no later than ten (10) Business Days prior to the Closing Date, provide the Company with any contract, agreement or plan entered into by the Purchaser (or at the direction of the Purchaser) and which are irrevocably waived by a disqualified individual (or reasonably be expected to be entered into at or prior to the Closing Date) the (the “Purchaser Arrangements”) to determine whether any payments made or to be made, or benefits granted or to be granted, pursuant to such individual under clause Purchaser Arrangements could reasonably be considered to be “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and (b) hereof, shall cooperate with the Company in good faith to provide the Company with information necessary for the Company to make such determination and for the Company to prepare the required disclosure at least five (b5) Business Days prior to the distribution Company obtaining the waivers and soliciting the vote as set forth in this Section 5.19. In any event, the Purchaser’s failure to provide the Purchaser Arrangements pursuant to the terms of this Section 5.19, for any reason, will not by itself result in a breach of the 280G Stockholder Vote materials, covenants set forth in this Section 5.19 by the Company shall use commercially reasonable efforts to obtain a waiver of the right to receive or retain any Parachute Payment Company. At least one (in the absence of the 280G Stockholder Vote1) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote (the “280G Waivers”), and (c) Business Day prior to the distribution of the 280G Stockholder Vote materials and the 280G WaiversClosing Date, the Company shall deliver to Parent complete copies Purchaser documents evidencing the results of all disclosure such vote. If any of the Waived 280G Benefits fail to be approved as contemplated above, such Waived 280G Benefits shall not be made or provided. At least three (3) Business Days prior to soliciting such waivers and other related documents that will be provided to soliciting such stockholder approval as contemplated in this Section 5.19, the Company Stockholders in connection with shall provide to Purchaser drafts of such waivers and such stockholder approval materials (including the 280G Stockholder Vote in a manner providing Parent with sufficient time to calculations and analysis supporting such documentation)for Purchaser’s review and comment thereonreasonable opportunity to comment, and the Company shall consider all reasonable comments of Parent in good faithfaith consider any such comments. The parties acknowledge that, Nothing contained in this Section 5.19 shall be deemed to require (i) the extent Company to obtain a waiver from any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a “disqualified individual, on the other hand ” or (“Parent Arrangements”ii) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G specific outcome of the Code of such Parent Arrangements reasonably vote described in advance of the Company’s request of the waivers under clause (b) abovethis Section 5.19.
Appears in 1 contract
Samples: Business Combination Agreement (Far Peak Acquisition Corp)
280G. Prior If required to avoid the imposition of Taxes under section 4999 of the Code and/or non-deductibility of payments or other benefits by reason of Section 280G of the Code, each Investor shall, or shall cause any of its Acquired Entities, as applicable, to (i) as soon as reasonably practicable, but in no event later than five (5) Business Days prior to the Closing Date, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of secure from each “disqualified individual” (as defined in Section 280G 280G(c) of the Code) who is entitled to receive any payment or benefit to be paid as a result of or in connection with the transactions contemplated by this Agreement that would be deemed to, separately or in the aggregate, without regard to the measures described herein, constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code and applicable rulings and final regulations thereunder (“Section 280G Payments”), a waiver by such individual of any and all such Section 280G Payments, and (ii) no later than three (3) Business Days prior to the Closing Date, submit to the stockholders of the Investor, or such Acquired Entity, as applicable, for a vote the right of any such individual to receive all such Section 280G Payments in a manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder. No later than four (4) and which are irrevocably waived by such individual under clause (b) hereof, (b) Business Days prior to the distribution Closing Date, such Investor or Acquired Entity shall provide adequate disclosure to stockholders of such Person that hold voting stock of such Person, in form and substance reasonably satisfactory to the 280G Stockholder Vote materialsother Investor, the Company shall use commercially reasonable efforts of all material facts concerning all payments that, but for such vote, could be deemed “parachute payments” to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable such “disqualified individualsindividual” (as defined under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject . Each Investor agrees to provide to the other Investor written drafts of any such stockholder disclosure statement, waivers, and stockholder approval forms that will be provided to disqualified individuals and stockholders in advance of delivering such documents to the disqualified individuals and stockholders, as applicable and allow the other Investor and its representatives a reasonable opportunity to provide comments on such documents, and the Investor or its Acquired Entities, as applicable, seeking consent and their respective representatives shall consider and not unreasonably omit any changes or comments thereto requested by the other Investor or its representatives. Prior to the Closing, the Investor or such Acquired Entity, as applicable, seeking consent shall deliver to the other Investor evidence reasonably acceptable to such other Investor that a stockholder vote was solicited in accordance with the foregoing provisions and that either (A) the requisite number of stockholder votes was obtained with respect to the Section 280G Stockholder Vote Payments (the “280G WaiversApproval”), and or (cB) prior to the distribution of that the 280G Stockholder Vote materials and the 280G WaiversApproval was not obtained, and, as a consequence, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) aboveBenefits have not been and shall not be made or provided.
Appears in 1 contract
280G. Prior to the Closing Date, (a) the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that constitute or would reasonably be expected to constitute “parachute payments” with respect to the transactions contemplated by this Agreement pursuant to Section 280G of the Code (each, a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior to the distribution of the 280G Stockholder Vote materialsVote, the Company shall use commercially reasonable reasonably efforts to obtain a waiver of the right to receive or retain any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments Payment would be subject to the 280G Stockholder Vote (the “280G Waivers”), ) and (c) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent Parent’s outside legal counsel for review complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) above.
Appears in 1 contract
280G. Prior to the Closing DateClosing, to the extent that any “disqualified individual” (a) within the Company shall use commercially reasonable efforts to submit for approval by the Company Stockholders, in conformance with meaning of Section 280G of G) has the Code and the regulations thereunder (the “280G Stockholder Vote”), right to receive or retain any payments or benefits in connection with the transactions contemplated by this Agreement that constitute or reasonably would reasonably be expected to constitute “parachute payments” with respect (within the meaning of Section 280G), the Company will (a) solicit and use reasonable best efforts to obtain, from each such person whom the transactions contemplated by this Agreement Company reasonably believes is a “disqualified individual,” a waiver of all or a portion of such disqualified individual’s rights or potential rights to any such payments or benefits (the “Waived 280G Benefits”), such that none of the remaining payments or benefits applicable to such disqualified individual would be deemed to be “excess parachute payments” pursuant to Section 280G, and (b) thereafter, with respect to each disqualified individual who executes the waiver described in clause (a), submit for approval the right of any such disqualified individual to receive or retain the Waived 280G Benefits to a vote of the Code holders of the applicable voting securities of the Company entitled to vote on such matters (eachthe “Voting Security Holders”), a “Parachute Payment”in the manner intended to satisfy the requirements under Section 280G(b)(5) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations and guidance promulgated thereunder) and which are irrevocably waived by such individual under clause (b) hereof, (b) prior . Prior to soliciting the distribution waivers of the Waived 280G Stockholder Vote materialsBenefits, the Company shall use commercially reasonable efforts provide to obtain a waiver Purchaser copies of the right to receive or retain any Parachute Payment (in the absence calculations and drafts of the 280G Stockholder Votewaivers, disclosure and other approval materials for Purchaser’s review and comment. To the extent that any Contract, agreement, plan or arrangement is planned to be entered into by, or at the direction of, the Company or any of its Affiliates and a disqualified individual at or prior to Closing, the Company shall provide a copy of such draft Contract, agreement, plan or arrangement to Purchaser at least five (5) from each Business Days before the Closing Date for review and comment, and such Parties will cooperate in good faith in order to agree on such terms, if applicable. To the extent applicable, at Closing, the Company will deliver to Purchaser evidence reasonably satisfactory to Purchaser that a vote of the applicable “disqualified individuals” Voting Security Holders was solicited in accordance with the foregoing provisions of this Section 7.2 and that either (as defined under Section i) the requisite number of votes of the Voting Security Holders was obtained with respect to the Waived 280G of the Code and the regulations promulgated thereunder) whose Parachute Payments would be subject to the 280G Stockholder Vote Benefits (the “280G WaiversApproval”), and ) or (cii) prior to the distribution of the 280G Stockholder Vote materials and the 280G Waivers, the Company shall deliver to Parent complete copies of all disclosure and other related documents that will be provided to the Company Stockholders in connection with the 280G Stockholder Vote in a manner providing Parent with sufficient time to review and comment thereon, and the Company shall consider all reasonable comments of Parent in good faith. The parties acknowledge that, to the extent any arrangements entered into at the direction of Parent or between Parent and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Parent Arrangements”) are Parachute Payments, Parent shall provide to the Company a written description of any Parent Arrangements and the value for purposes of Section 280G of the Code of such Parent Arrangements reasonably in advance of the Company’s request of the waivers under clause (b) aboveApproval was not obtained.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Atlas Energy Solutions Inc.)
