Section 280G Approval. To the extent that any payments or benefits would constitute “parachute payments,” as such term is defined in Section 280G of the Code and the Treasury Regulations promulgated thereunder (“Section 280G”) in connection with the consummation of the Contemplated Transactions (the “Potential Parachute Payments”), prior to the Closing, the Company shall conduct a vote in accordance with the requirements of Section 280G with respect to the Potential Parachute Payments (the “280G Vote”), including using commercially reasonable efforts to (a) obtain a waiver of the right to receive Potential Parachute Payments from each person who is a “disqualified individual” within the meaning of Section 280G and who has Potential Parachute Payments and (b) solicit stockholder approval of some portion of the Potential Parachute Payments such that, if stockholder approval is obtained, there will be no parachute payments. The Company shall provide copies of the calculations, waivers and all materials to be distributed in connection with the 280G Vote not later than five (5) Business Days prior to the execution or distribution, as applicable, of such materials, for Buyer’s (or Buyer’s designee’s) review and comment, and shall consider in good faith for incorporation all of Buyer’s (or Buyer’s designee’s) comments thereto. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably satisfactory to Buyer that stockholder approval of the Potential Parachute Payments was obtained in conformance with the applicable requirements of Section 280G, or that such stockholder approval was not obtained, and as a consequence the Potential Parachute Payments shall not be made or retained. Buyer shall reasonably cooperate with the Company in connection with the determination of any parachute payments subject to this Section 8.16, by responding to reasonable requests by the Company for material information in Buyer’s possession relevant to such payments (including copies of any go-forward employment, incentive, equity, or other agreements) no later than seven (7) Business Days prior to the Closing. Neither the Company nor Seller, nor any of their respective Affiliates, will be deemed to be in breach of this Section 8.16 to the extent that the 280G Vote does not meet the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder due to Buyer’s breach of the immediately preceding sentence. Notwithstanding the foregoing, in the event the Com...
Section 280G Approval. To the extent that the Company determines that any Person who is a “disqualified individual” (within the meaning of Section 280G of the Code, hereinafter “Section 280G”)) would have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would be deemed to constitute “parachute payments” (within the meaning of Section 280G), then, as soon as reasonably practicable following the date of this Agreement, but in no event later than five (5) Business Days prior to the Closing Date, the Company shall (i) solicit waivers from each such Person as to which such Person shall agree to waive his or her rights to some or all of such payments and/or benefits (the “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), and (ii) solicit the approval of the stockholders of the Company to the extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any Waived 280G Benefits. Prior to soliciting such waivers and approvals, the Company shall provide drafts of such waiver and such stockholder approval materials to Parent for Parent’s review. To the extent any of the Waived 280G Benefits are not so approved by the stockholders as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing Date, Company shall deliver to Parent evidence that a vote of the stockholders was solicited in accordance with the foregoing provisions of this Section 6.13 and that either (A) the requisite number of stockholder votes were obtained with respect to the Waived 280G Benefits (the “280G Approval”), or (B) that the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.
Section 280G Approval. The 280G Proposal shall have been subject to a vote by the Company Shareholders as required by Section 5.11(d), and, as required by Section 5.11(c), each “disqualified individual” set forth on Schedule 5.11(c) of the Company Disclosure Letter shall have agreed to, and shall, forfeit any payments that would be non-deductible if the shareholder approval described in Section 5.11(d) is not obtained.
Section 280G Approval. If the Company or any Subsidiary is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments, that will not be deductible under Section 280G of the Code (“Section 280G Payments”) if the stockholder approval requirements of Section 280G(b)(5)(B) of the Code are not satisfied, then the Company shall use its commercially reasonable efforts to obtain such stockholder approval as promptly as is practicable after the Agreement Date and in any event prior to the Closing Date.
Section 280G Approval. Promptly following the execution of this Agreement and no later than two (2) Business Days prior to the Closing Date, the Company shall (to the extent the waivers described below are obtained) use commercially reasonable efforts to solicit approval by its stockholders, to the extent required by, and in manner that complies with, Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder, of the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive and retain any payments or benefits to be made or deemed made by the Company that would, separately or in the aggregate, in the absence of such approval by stockholders, constitute “parachute payments” pursuant to Section 280G of the Code as a result of the transactions contemplated by this Agreement. Prior to seeking such stockholder approval, the Company shall use commercially reasonable efforts to obtain from each “disqualified individual” (as defined under Section 280G(c) of the Code) with a right to any potential “parachute payment” (as defined under Section 280G(b)(2) of the Code) a waiver of that right (“Waived 280G Benefits”) such that unless such payment to that disqualified individual is approved by stockholders in a manner described in Section 280G(b)(5) of the Code, no such payment will be made. Within a reasonable period of time prior to soliciting such waivers and vote, the Company shall provide a draft of such waivers 57
Section 280G Approval. If, in Parent’s reasonable belief, any Contract or arrangement to which the Company is a party would be reasonably likely to give rise to or has given rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code, such amount shall have been subject to a vote by the Company Stockholders as required by Section 5.12(b), and, as required by Section 5.12(a), any “disqualified individuals” (as defined in Section 280G of the Code) shall have agreed to, and shall, forfeit any payments that would be non-deductible if the stockholder approval described in Section 5.12(b) is not obtained.
Section 280G Approval. Prior to the Closing, the Company shall submit to its stockholders for approval, meeting the requirements of Section 280G(b)(5)(B) of the Code and the applicable rulings and final regulations thereunder, payments and/or benefits that may separately or in the aggregate, constitute “parachute payments,” within the meaning of Section 280G(b)(2) of the Code and the applicable rulings and final regulations thereunder (“Section 280G Payments”), such that the deduction of such payments and benefits will not be limited by the application of Section 280G of the Code and the applicable rulings and final regulations thereunder. Prior to Closing, the Company shall deliver to Parent certification that (i) the Company stockholder vote was solicited in conformity with Section 280G(b)(5)(B) of the Code and the applicable rulings and final regulations thereunder and the requisite Company stockholder approval was obtained with respect to any Section 280G Payments that were subject to the Company stockholder vote, or (ii) that the Company stockholder approval of Section 280G Payments was not obtained and as a consequence, that such payments and/or benefits shall not be made or provided to the extent that they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers (as applicable) of those payments and/or benefits duly executed by the affected individuals prior to the Company stockholder vote. The Company shall forward to Parent prior to submission to the Company’s stockholders copies of all documents prepared by the Company in connection with this Section 5.14.
Section 280G Approval. To the extent applicable, prior to each Closing, the Seller Group shall (a) take all necessary actions (including soliciting waivers or other consents from each “disqualified individual” within the meaning of the Treasury Regulations under Section 280G of the Code) in order to solicit the approval and consent of all Persons entitled to vote (within the meaning of the Treasury Regulations of Section 280G of the Code) with respect to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that could, in the absence of equityholder approval of such payments and/or benefits, be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code) (the “Waived 280G Benefits”), and (b) solicit the approval of the applicable equityholders in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any Waived 280G Benefits and in form and substance reasonably satisfactory to Parent and its counsel (the “Section 280G Approval”). Parent shall have the right to review and comment on all documents and materials relating to the Waived 280G Benefits and the Section 280G Approval thereof in advance of the solicitation of such approval.
Section 280G Approval. The Company shall have delivered to Acquirer the notification and evidence required by Section 5.15.
Section 280G Approval. To the extent applicable, the Company shall use reasonable best efforts to (i) obtain waivers, no later than 10 Business Days prior to the Closing, of any excess parachute payment (as described below) from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein (either alone or upon occurrence of any other event) that would be deemed to constitute “excess parachute payments” (within the meaning of Section 280G of the Code (hereafter, “Section 280G”)) (the “Waived 280G Benefits”), and (ii) solicit the approval of the stockholders of the Company in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any Waived 280G Benefits.
