Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote.
Appears in 2 contracts
Samples: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Section 280G Matters. To The Company will deliver to the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals Purchaser reasonably detailed information setting forth all persons who are may be “disqualified individuals” (within as defined in Section 280G(c) of the meaning of Section 280GCode) and who have a right to any may be receiving payments and/or or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”under this Agreement or any other Contract, plan or arrangement or otherwise, including severance payments, and acceleration of vesting or benefits under options or restricted stock), Parent shall provide a copy and any family or other relationships among the stockholders of such Parent Arrangement to the Company at least ten (10) calendar days before that would result in attribution of ownership under Section 318 of the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (Code for the purposes of Section 280G of set forth above. Prior to the Code) Closing Date, the Company shall submit to a stockholder vote the right of any “disqualified individual” to receive any and all payments (or benefits granted or contemplated therein, which may be paid or granted in connection with 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 could constitute no payment received by such “disqualified individual” would be a “parachute payment” under Section 280G; provided that280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code), in any eventa manner that satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder. In addition, before the vote is submitted to stockholders, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide disclosure to Parent at least five the stockholders of the Company that hold voting shares of the capital stock of the Company of all material facts concerning all payments that, but for such vote, could be deemed “parachute payments” to a “disqualified individual” under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder (5) calendar days prior the “280G Approval”). Prior to seeking the delivery to the stockholders of the Company of the documents to be delivered to such stockholders in connection with the 280G WaiversApproval, the Company will have provided the Purchaser and its counsel a reasonable opportunity, but in any event no fewer than five Business Days, to review and comment on final drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteall such documents.
Appears in 1 contract
Section 280G Matters. To the extent applicable, (i) If the Company shall (or shall cause any of its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within Subsidiaries 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 would or may not be deductible under Section 280G of the meaning Code if the stockholder approval requirements of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code are not satisfied, then the Company shall, prior to the Closing, submit for approval, pursuant to Section 280G(b)(5)(B) of the Code and the regulations thereunder and in a manner reasonably satisfactory to Purchaser, by the stockholders of the Company entitled to vote, any Waived payments and/or benefits to any shareholder, director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries that may be deemed to constitute “parachute payments” as defined in Section 280G(b)(2) of the Code (“Potential 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote”), so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day and, prior to the Closing DateClosing, the Company shall deliver to Parent Purchaser evidence reasonably satisfactory to Purchaser either that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the requisite stockholder approval of the Stockholder was obtained obtained, or (ii) the approval of the Stockholder was not obtained and no Waived Potential 280G Benefits shall will be paid payable or provided. Notwithstanding retained, including by reason that the foregoing, individual or individuals entitled to such payments elected to sign waivers forfeiting any payments or benefits that may be deemed to constitute “parachute payments”.
(ii) To the extent that any contract, agreement, plan, or arrangement plan is entered into by Parent Purchaser, the Company, any Subsidiary of the Company or any of its their Affiliates and a “disqualified individual individual” (as defined in Section 280G of the Code) in connection with the transactions contemplated by this Agreement before the Closing Date (Date, the “Parent Arrangements”), Parent Purchaser shall provide a copy of such Parent Arrangement contract, agreement or plan to the Company and the Stockholders’ Representative at least ten five (105) calendar days Business Days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may are reasonably expected to be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach G of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteCode.
Appears in 1 contract
Section 280G Matters. To Prior to the extent applicableClosing, the Company shall use its commercially reasonable efforts to take such actions that are intended to ensure that the payment of any amounts or benefits (whether or shall cause its applicable Affiliates tonot accelerated) solicit (a) waivers from individuals who are to a “disqualified individualsindividual” (within as defined in Section 280G(c) of the meaning of Section 280GCode) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that hereunder, would not, separately or in the aggregate, reasonably be expected to constitute result in the disallowance of a deduction to the Company or any Company Subsidiary, as applicable, under Section 280G of the Code, including, as necessary, (a) soliciting the requisite approval of the Company’s direct or indirect stockholders of all or a portion of any such payments or benefits, in a manner that meets the shareholder approval requirements of Section 280G(b)(5) of the Code and Treasury Regulations Section 1.280G-1, Q/A-7 (including providing such members adequate disclosure of all material facts concerning any such payments or benefit as provided in, and otherwise conducting such solicitation in conformity with, Section 280G(b)(5)(B) of the Code) and (b) to the extent necessary, attempting to obtain a waiver from each such “disqualified individual” entitled to receive any payments or benefits which would reasonably be expected, individually or when aggregated with other payments or benefits, to cause or trigger “excess parachute payments” (within the meaning of Section 280G) (G of the “Waived 280G Benefits”, Code). The Company shall provide Buyer with drafts of all such solicitation materials and each such waiver, a “280G Waiver”) consents for review and (b) comment prior to the Closing Date delivery to equityholders or disqualified individuals, as applicable (such review and at least one (1) calendar day following the receipt of the 280G Waiverscomment not to be unreasonably withheld, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiverconditioned or delayed). At least one day prior to To the Closing Dateextent solicited, the Company shall deliver to Parent Buyer prior to the Closing evidence (in the form of the final executed documents described in the preceding sentence) showing that a vote of the Stockholder Company’s equityholders was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide 7.17 and demonstrating whether or not the requisite number of equityholders votes consenting to Parent at least five (5) calendar days prior such benefits and payments was obtained with respect to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement such benefits and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the votepayments.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers The Company shall obtain and deliver to Parent, prior to soliciting the vote of the Stockholders with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit K (the “Parachute Payment Waiver”) from individuals each Person who are is or reasonably could be, with respect to the Company, a “disqualified individualsindividual” (within the meaning of Section 280G) G of the Code), as determined immediately prior to the initiation of the Stockholder solicitation required by this Section 4.10, and who reasonably might otherwise receive, have a received, or have the right or entitlement to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “receive an excess parachute payments” (within the meaning of payment under Section 280G) (G of the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and Code.
(b) prior to The Company shall solicit the Closing Date and at least one (1) calendar day following the receipt vote of the 280G Waivers, the approval of the Stockholder Stockholders in a manner intended to comply accordance with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code of any Waived (the “280G Benefits; provided that the Company shall not be in breach of this covenant solely Proposal”) so as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder voterender, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) if an affirmative vote is not obtained, the approval of excess parachute payments that have been waived pursuant to the Stockholder was obtained executed Parachute Payment Waivers will not be retained or received or (ii) if an affirmative vote is obtained, the approval parachute payment provisions of Section 280G of the Stockholder was not obtained Code inapplicable to any and no Waived 280G Benefits shall be paid or provided. Notwithstanding all payments and benefits provided pursuant to Contracts that, in the foregoing, to absence of the extent that any contract, agreement, plan, or arrangement is entered into executed Parachute Payment Waivers by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”affected Persons under Section 4.10(a), Parent shall provide a copy could otherwise reasonably result, individually or in the aggregate, in the payment of such Parent Arrangement to any amount or the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such Stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code, including Q-7 of Section 1.280G-1 of the Treasury Regulations. The results of such vote shall be provided promptly to Parent prior to the Closing. The documentation constituting the 280G Proposal shall be subject to Parent’s prior review and approval, which shall not be unreasonably withheld, conditioned or delayed.
(c) In addition, the Company has received the offer letters and employment agreements provided to any “disqualified individual” by Parent or any Parent Entity or at the direction of Parent or any Parent Entity, in each case prior to or on the Closing Date and that could reasonably be expected to be taken into account in determining whether any payments or and benefits granted or contemplated therein, which may be paid or granted constitute “parachute payment” pursuant to Section 280G of the Code with respect to any such Person in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteTransactions.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers Seller shall obtain and deliver to Buyer, prior to soliciting the vote of the stockholders of Seller with respect to the 280G Proposal, an executed parachute payment waiver, in substantially the form attached hereto as Exhibit B (the “Parachute Payment Waiver”) from individuals each Person who are is or reasonably could be, with respect to Seller, a “disqualified individualsindividual” (within the meaning of Section 280G) G of the Code), as determined immediately prior to the initiation of the stockholder solicitation required by this Section 4.13, and who reasonably might otherwise receive, have a received, or have the right or entitlement to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “receive an excess parachute payments” (within the meaning of payment under Section 280G) G of the Code (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and which Persons are listed in Schedule 4.13(a)).
(b) prior Prior to the Closing Date and at least one (1) calendar day following Closing, Seller shall solicit the receipt vote of the 280G Waivers, the approval of the Stockholder Stockholders in a manner intended to comply accordance with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements280G Proposal”)) so as to render, Parent shall provide a copy if an affirmative vote is obtained, the parachute payment provisions of such Parent Arrangement Section 280G of the Code inapplicable to any and all payments and benefits provided pursuant to Contracts that, in the Company at least ten (10) calendar days before absence of the Closing Date and shall cooperate with executed Parachute Payment Waivers by the Company affected Persons under Section 4.13(a), might otherwise reasonably result, individually or in good faith the aggregate, in order to calculate the payment of any amount or determine the value (for the purposes provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to be solicited in a manner that satisfies all applicable requirements of Section 280G(b)(5)(B) of any payments or benefits granted or contemplated thereinthe Code, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under including Q-7 of Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach 1.280G-1 of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9Treasury Regulations. The Company results of such vote shall provide be provided promptly to Parent at least five (5) calendar days prior to seeking Buyer. The documentation constituting the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for ParentProposal shall be subject to Buyer’s prior review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteapproval.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the The Company shall (or shall use commercially reasonable efforts to cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right KSH Solutions to take any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected actions necessary to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, submit for the approval of the Stockholder stockholders of KSH Solutions in a manner intended to comply with that satisfies Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the final Treasury Regulations issued thereunder (the “Stockholder Vote”), the right of each “disqualified individual” (as defined in Section 280G(c) of the Code) (each, a “Disqualified Individual”) to receive or retain, as applicable, that portion of any Waived 280G Benefits; provided payments and benefits that, together with any other payments and benefits such Disqualified Individual may become entitled to receive that the Company shall not may be in breach of this covenant solely as a result considered “parachute payments” under Section 280G(b)(2) of the refusal Code (“Parachute Payments”), exceeds 299% of any disqualified individual to waive such Disqualified Individual’s “base amount” (as defined in Section 280G(b)(3) of the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiverCode). At least one day In connection with the preceding sentence, (1) prior to the Closing Date, the Company shall deliver use commercially reasonable efforts to Parent evidence that a vote obtain any required individual waivers or consents from each Disqualified Individual pursuant to which such Disqualified Individual waives the right to any Parachute Payment, (2) following execution of the Stockholder was solicited waivers and consents described in accordance with the foregoing provisions and that either clause (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits 1), KSH Solutions shall be paid or provided. Notwithstanding the foregoingdeliver, among other items, to its stockholders a disclosure statement intended to satisfy the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any stockholder approval requirements of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement Section 280G(b)(5)(B) prior to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with (3) prior to the Stockholder Vote, the Company in good faith in order shall have delivered to calculate or determine the value (for the purposes Purchaser true and complete copies 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 all disclosure and documents that could constitute a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in comprise the stockholder voting materials described herein will not result approval of each Parachute Payment in a breach of the covenants set forth in this Section 6.9 if such failure is due sufficient time to Parent’s breach of this Section 6.9. The Company shall provide allow Purchaser to Parent at least comment thereon but no less than five (5) calendar days Business Days prior to seeking the 280G WaiversClosing Date, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reflect all reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteof Purchaser thereon.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (On Assignment Inc)
Section 280G Matters. To Prior to the Closing, to the extent applicablereasonably necessary as determined by the Company following advanced notice to, and good faith consideration of any comments by, Buyer, the Company shall (or shall cause its applicable Affiliates to) solicit (a) use commercially reasonable efforts to obtain waivers from individuals who are of any payments and/or benefits to such “disqualified individuals” that, separately or in the aggregate, may 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”) from, and duly executed by, such “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waivereach, a “280G WaiverWaiver Agreement”) and (b) prior thereafter, if any such Waiver Agreements are actually obtained, use commercially reasonable efforts to obtain approval (meeting the Closing Date and at least one (1) calendar day following the receipt requirements of the 280G Waivers, the approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code and the applicable rulings and final regulations thereunder) of such Section 280G Payments (the “Shareholder Approval”), such that no such payment will be deemed an “excess parachute payment” as contemplated by Section 280G of the Code and the applicable rulings and final regulations thereunder. The Company shall provide drafts of any Waived Waiver Agreement and Shareholder Approval materials to Buyer for its review and comment (which review and comment will not be unreasonably withheld, conditioned or delayed). If Buyer desires to have included in the Section 280G Benefits; provided Payments any new compensation arrangements entered into by or at the direction of Buyer that could be deemed parachute payments with respect to any disqualified individuals of the Company and its Subsidiaries (“New Arrangements”), Buyer shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them deliver to the applicable stockholder vote, so long as Company all relevant information with respect to such New Arrangements at least five Business Days prior to the Closing Date. If Buyer does not provide the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value with all relevant information with respect to such disqualified individual in order to receive such waiver). At New Arrangements at least one day five Business Days prior to the Closing Date, the Company shall deliver not be required to Parent evidence that a vote include such New Arrangements in the determination of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of Payments. In no event shall the Code) of any payments or benefits granted or contemplated therein, which may Company be paid or granted deemed to be in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide 8.07 if any disqualified individual refuses to Parent at least five (5) calendar days prior to seeking execute a Waiver Agreement or if the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteShareholder Approval is not obtained.
Appears in 1 contract
Samples: Stock Purchase Agreement (TELUS International (Cda) Inc.)
Section 280G Matters. To As soon as practicable following the extent applicableexecution of this Agreement but in any case prior to the Closing:
(i) Sellers will use reasonable commercial efforts to obtain, prior to the Company shall initiation of the 280G Approval, a waiver (or shall cause its applicable Affiliates to) solicit (a) waivers a “Parachute Payment Waiver”), in a form reasonably acceptable to Purchaser, from individuals who are each Transferred Employee who, with respect to Sellers, reasonably could be a “disqualified individualsindividual” (within the meaning of Section 280GG of the Code and the regulations promulgated thereunder) and who who, with respect to Sellers, reasonably might otherwise receive, have a received, or have the right or entitlement to receive any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of payment under Section 280G) (G of the “Waived 280G Benefits”Code, and pursuant to which Parachute Payment Waiver each such waiverTransferred Employee will agree, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of unless the 280G Waivers, the approval of the Stockholder Approval has been obtained in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the regulations promulgated thereunder and Internal Revenue Bulletin 2004-32, to waive any and all right or entitlement to the payments, acceleration of any Waived vesting and/or other benefits referred to in this Section 7.4(e) to the extent the value thereof exceeds 2.99 times such Transferred Employee’s base amount determined in accordance with Section 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual Code and the regulations promulgated thereunder.
(ii) Sellers will use reasonable commercial efforts to waive the applicable payments and submit them to the applicable stockholder voteBankruptcy Courts for approval all such waived payments in a manner such that, so long as if such approval is obtained by the Company used commercially reasonable efforts to solicit Bankruptcy Courts in a manner which satisfies Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder and Internal Revenue Bulletin 2004-32, no payment or benefit received by such waiver “disqualified individual” would be a “parachute payment” for purposes of Section 280G of the Code (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver“280G Approval”). At least one day prior Prior to the Closing Date, the Company Sellers shall deliver to Parent Purchaser evidence that a vote of the Stockholder 280G Approval was solicited in accordance with the foregoing provisions of Section 7.4(e) (to the extent such 280G Approval was required to be solicited in connection with payments with respect to which Sellers were required to use reasonable commercial efforts to obtain a Parachute Payment Waiver in accordance with the foregoing provisions of Section 7.4(e)) and that either (i) the approval of the Stockholder 280G Approval was obtained or (ii) the approval of the Stockholder 280G Approval was not obtained obtained, and no Waived 280G Benefits as a consequence, the parachute payments subject to the Parachute Payment Waivers shall not be paid made or provided. Notwithstanding .
(iii) In connection with the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior before taking such actions, the Sellers shall deliver to seeking Purchaser for review and comment (i) parachute payment calculations prepared by the 280G Waivers, drafts Seller or its advisors and (ii) copies of all Bankruptcy Court disclosure materials and a form of the consentParachute Payment Waiver that will be used to effectuate the undertaking set forth in this Section 7.4(e), waiver, disclosure statement and calculations for Parent’s review and comment. The Company which comments by Purchaser shall incorporate any reasonable comments made be reasonably considered by Parent prior to seeking the 280G Waivers and soliciting the voteSellers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Performance Sports Group Ltd.)
Section 280G Matters. To Prior to the extent applicableClosing, the Company shall submit to the Company Stockholders, for approval by a vote of Company Stockholders as is required pursuant to Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder (the “280G Stockholder Vote”), any such payments or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are other benefits that, separately or in the aggregate, would otherwise be “disqualified individualsparachute payments” (within the meaning of Section 280G) G of the Code and who have a right the Treasury Regulations thereunder (the “280G Payments”), such that, if the 280G Stockholder Vote is received approving the 280G Payments, such 280G Payments shall not cause there to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of under Section 280G) (G of the “Waived Code and the Treasury Regulations thereunder. Prior to such 280G Benefits”Stockholder Vote, the Company shall obtain, from each Person whom the Company reasonably believes to be with respect to the Company or any of its Affiliates a “disqualified individual” (as defined in Section 280G of the Code and each such waiverthe Treasury Regulations thereunder) and who would otherwise receive or have the right or entitlement to receive a 280G Payment, a “written waiver (in form and substance reasonably satisfactory to Acquiror) pursuant to which such Person agrees to waive any and all right or entitlement to such 280G Waiver”) and (b) prior Payment, to the Closing Date and at least one (1) calendar day following extent such payment would cause any payment not to be deductible pursuant to Section 280G of the receipt of Code. Such waivers shall cease to have any force or effect with respect to any item covered thereby to the extent the 280G WaiversStockholder Vote for such item is obtained. The Company shall provide to Acquiror any materials to be distributed to Company Stockholders pursuant to this Section within a reasonable period of time prior to distribution to Company Stockholders, and such materials shall be subject to the prior review and approval of the Stockholder in a manner intended Acquiror (such approval not to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder voteunreasonably withheld, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiverconditioned or delayed). At least one day prior Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and Acquiror written certification that either (ia) the 280G Stockholder Vote was solicited and the Company Stockholder approval was obtained with respect to any 280G Payments that were subject to the 280G Stockholder Vote, or (b) the Company Stockholder approval of the Stockholder was obtained or (ii) the approval of the Stockholder any 280G Payments was not obtained and no Waived as a consequence, such 280G Benefits Payments shall not be paid made or provided. Notwithstanding the foregoing, provided to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteaffected individual.
Appears in 1 contract
Samples: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Section 280G Matters. To the extent applicable, Seller shall cause the Company shall (or shall cause its applicable Affiliates to) solicit to (a) waivers prior to soliciting the stockholder approval set forth in clause (b) below, solicit, and use commercially reasonable efforts to obtain, a waiver from individuals each Person who are is a “disqualified individualsindividual” (within the meaning of Section 280G) G of the Code and who have has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein by this Agreement that does or would reasonably be expected to constitute a “excess parachute paymentspayment” (within the meaning of Section 280G) G of the Code), pursuant to which such Person will irrevocably waive all or a portion of such 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 “excess parachute payments” within the meaning of Section 280G of the Code (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) with respect to each Person who executes a waiver as described in clause (a) above, prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G WaiversDate, solicit the approval of the Stockholder applicable holders of Equity Securities 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, Contract or arrangement plan is entered into by Parent or at the direction of any of its Affiliates Buyer Related Party and a “disqualified individual individual” (within the meaning of Section 280G of the Code) in connection with the transactions contemplated by this Agreement on or before the Closing Date (the “Parent Buyer Arrangements”), Parent shall Buyer shall, at least seven (7) days prior to the Closing Date, provide a copy of such Parent Arrangement Contract or plan to the Company at least ten (10) calendar days before the Closing Date Seller and shall reasonably cooperate with the Company Seller in good faith in order to calculate or determine the value (for the 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 (within the meaning of Section 280GG of the Code); provided that, in any event, the Companythat Seller’s failure to include the Parent Buyer Arrangements in the stockholder voting materials described due to Buyer’s breach of its obligations set forth herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due 5.7. Seller and the Company shall have delivered to Parent’s breach Buyer drafts of all calculations, waivers, disclosure and documents that comprise the approval of each parachute payment in sufficient time to allow Buyer to comment thereon but no less than seven (7) days prior to the Closing Date, and shall consider all reasonable comments of Buyer thereon. Prior to the Closing Date, the Company shall deliver to Buyer evidence that a vote of the applicable holders of Equity Securities was solicited in accordance with the foregoing provisions of this Section 6.9. The Company shall provide 5.7 and that either (A) the requisite number of votes were obtained with respect to Parent at least five the Waived 280G Benefits to avoid loss of deduction an excise taxes (5the “280G Approval”), or (B) calendar days prior to seeking the 280G WaiversApproval was not obtained, drafts of and, as a consequence, the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the Waived 280G Waivers and soliciting the voteBenefits shall not be made or provided.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carlisle Companies Inc)
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior Prior to the Closing Date and at least one Date, but in no event later than (1i) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(iifive (5) and 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day Business Days prior to the Closing Date, the Company shall deliver Seller will use commercially reasonable efforts to Parent evidence that obtain a vote written waiver from each individual who is a “disqualified individual” (as defined in Section 280G(c) of the Stockholder was solicited Code) of the portion of any and all payments and benefits that could reasonably be deemed a “parachute payment” (as defined in Section 280G(b)(2) of the Code) and would result in the imposition of an excise tax on such individual pursuant to Section 4999 of the Code (the “Waived Payments”) unless such Waived Payments are approved by the shareholders of the Seller (or the applicable direct or indirect parent or subsidiary entity of Seller) in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the CodeCode and the regulations thereunder, and (ii) three (3) Business Days prior to the Closing Date, the Seller will submit to its shareholders (or the shareholders of its applicable direct or indirect parent entity of Seller) for a shareholder vote (in a manner reasonably designed to comply with Section 280G(b)(5)(B) of the Code and the regulations thereunder) the right of any payments such disqualified individual to receive his or benefits granted or contemplated therein, which may her respective Waived Payments in a manner reasonably designed to cause the Waived Payments to be paid or granted exempt from the definition of “parachute payment” by reason of the exemption provided under Section 280G(b)(5)(B) of the Code. Prior to delivery to the shareholders and disqualified individuals of documents in connection with the transactions shareholder approval contemplated by under this Agreement that could constitute a “parachute payment” under paragraph, the Seller will provide the Purchaser and its counsel (i) its Section 280G; provided thatG of the Code calculations along with the assumptions used to make the calculations, and (ii) a reasonable opportunity to review such information and comment on all documents to be delivered to the shareholders and disqualified individuals in connection with the vote, and the Seller agrees to consider, in any eventgood faith, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if all such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking from the 280G Waivers and soliciting the votePurchaser.
Appears in 1 contract
Section 280G Matters. (a) To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely “disqualified individual” (as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement term is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (defined for the purposes of Section 280G of the Code) of the Company Group (a “Disqualified Individual”) would be entitled to any payments payment or benefits granted or contemplated therein, which may be paid or granted in connection with benefit as a result of the transactions contemplated by this Agreement that or any other Transaction Document (either alone or upon the occurrence of any additional or subsequent events), and (1) such payment or benefit could potentially constitute a “parachute payment” under Section 280G; provided thatG of the Code or could reasonably be expected to result in the imposition of any excise Tax imposed under Section 4999 of the Code, in Seller shall, prior to the Closing:
(i) use its best efforts to obtain a binding written waiver by such Disqualified Individual (each, an “Excess Parachute Waiver”) of any eventportion of such parachute payment as exceeds 2.99 times such individual’s “base amount” within the meaning of Section 280G(b)(3) of the Code (collectively, the Company’s failure “Excess Parachute Payments”) to include the Parent Arrangements extent such Excess Parachute Payments are not subsequently approved pursuant to a stockholder vote in accordance with the requirements of Section 280G(b)(5)(B) of the Code and Treasury Regulations § 1.280G-1 thereunder (the “280G Stockholder Approval Requirements”);
(ii) provide all required disclosure to all Persons entitled to vote under Section 280G(b)(5)(B)(ii) of the Code and hold a vote of stockholders in the manner intended to satisfy the 280G Stockholder Approval Requirements; and
(iii) seek stockholder voting materials described herein will not result approval in a breach manner that satisfies the 280G Stockholder Approval Requirements in respect of the covenants set forth Excess Parachute Payments payable to all such Disqualified Individuals.
(b) The Excess Parachute Waivers, disclosure to stockholders and any other resolutions, notices or other documents issued, distributed, adopted or executed in this Section 6.9 if such failure is due to Parent’s breach connection with the implementation of this Section 6.9. The Company 8.21 shall provide be subject to Parent at least five (5) calendar days Purchaser’s prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company , and Seller shall incorporate revise any such documentation to take into account any reasonable comments made by Parent prior Purchaser; provided that Purchaser shall in no way be responsible for any of the content of such disclosure except for information supplied in writing by Purchaser expressly for inclusion therein.
(c) To the extent any Excess Parachute Payments are not approved as contemplated in Section 8.21(a)), such Excess Parachute Payments shall not be made or provided. Prior to seeking the Closing Date, Seller shall deliver to Purchaser written evidence of satisfaction of the 280G Waivers and soliciting Stockholder Approval Requirements or written notice of the votenon-satisfaction thereof.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) use reasonable best efforts to solicit (a) waivers a waiver from individuals each Person who are “disqualified individuals” (within the meaning of Section 280G) and who have has a right to any payments and/or or benefits as a result of or in connection with the transactions contemplated herein Transactions that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280GG of the Code) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder Stockholders 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; provided provided, that in no event shall this Section 8.3 be construed to require the Company shall not be in breach of this covenant solely as a result or any of the refusal of Company Subsidiaries to compel any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided any existing rights under any Contract that the Companies shall not be required to provide any additional value to such disqualified individual in order has with the Company or any of the Company Subsidiaries or any other Person. Prior to receive such waiver). At least one day prior to soliciting the Closing Dateaforementioned waivers, the Company shall deliver provide drafts of the required waivers and consents to Parent and consider in good faith incorporating into such materials any reasonable comments that are timely provided by Parent. Prior to the Closing, the Company shall provide Parent and its counsel with evidence reasonably satisfactory to Parent that a vote of the Stockholder requisite stockholders was solicited in accordance with the foregoing provisions and that either (i) the requisite stockholder vote was obtained with respect to approval of the Stockholder was obtained Waived 280G Benefits, or (ii) the such approval of the Stockholder vote was not obtained and obtained, and, as a result, no Waived 280G Benefits shall will be paid made or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, agreement or arrangement plan is or to be entered into by Parent Parent, the Surviving Corporation or any of its their Affiliates and a “disqualified individual individual” (within the meaning of Section 280G of the Code) in connection with the transactions contemplated by this Agreement Transactions on or before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement contract, agreement or plan to the Company and the Seller Representative at least ten (10) calendar days Business Days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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 Transactions that could constitute a “parachute payment” under (within the meaning of Section 280GG of the Code); provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein due to Parent’s non-compliance with this Section 8.3 will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s 8.3. In no event shall the Company be deemed in breach of this Section 6.9. The Company shall provide 8.3 if any disqualified individual refuses to Parent at least five (5) calendar days prior to seeking execute a waiver or the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the votestockholder approval is not obtained.
Appears in 1 contract
Samples: Agreement and Plan of Merger (PERDOCEO EDUCATION Corp)
Section 280G Matters. To Prior to the extent applicableEffective Time, the Company and its Subsidiaries shall submit to a stockholder vote (or shall cause its applicable Affiliates toalong with adequate disclosure satisfying the requirements of Section 280G(b)(5)(B)(ii) solicit (aof the Code and any Treasury Regulations promulgated thereunder) waivers from individuals who are the right of any “disqualified individualsindividual” with respect to the Company or any of its Subsidiaries (within the meaning of Section 280G(c) of the Code) to receive any payment that would constitute a “parachute payment” (within the meaning of Section 280G280G(b)(2)(A)(i) of the Code) and who have as to which such individual waives his or her rights as described in the following sentence in a right manner that satisfies the stockholder approval requirements of Section 280G(b)(5) of the Code and any Treasury Regulations promulgated thereunder to the extent necessary to cause any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected such payment to not constitute an “excess parachute paymentspayment” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B280G(b)(1) of the Code of any Waived 280G Benefits; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver)Code. At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to To the extent that any contractsuch “disqualified individual” has the right to receive payments that could constitute “parachute payments” and elects to waive such rights, agreement, plan, or arrangement is entered into by Parent or the Company and any of its Affiliates Subsidiaries, as applicable, shall obtain waivers of such rights prior to soliciting the vote described in the immediately preceding sentence such that the vote shall, if successful, establish each “disqualified individual’s” right to the payment. At least three (3) days prior to execution, the Company and its Subsidiaries shall provide, or cause to be provided, to Parent a draft of all stockholder vote related documents, including any disclosure documents, “disqualified individual in connection with individual” waivers, and the transactions contemplated underlying analysis used to prepare such documents. The Company and its Subsidiaries shall incorporate any reasonable comments that are made by this Agreement before the Closing Date (the “Parent Arrangements”), Parent. Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall reasonably cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach preparation of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteshareholder vote related documents.
Appears in 1 contract
Samples: Merger Agreement (Roadrunner Transportation Systems, Inc.)
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit that (a) waivers from individuals who are any “disqualified individuals” (as such term is defined for purposes of Section 280G of the Code) (each, a “Disqualified Individual”) of the Company or any of its Subsidiaries would be entitled to any payment or benefit as a result of the transactions contemplated by this Agreement and (b) such payment or benefit would, or could reasonably be expected to, constitute a “parachute payment” under Section 280G of the Code, Seller and the Company shall use commercially reasonable best efforts to: (i) seek written waivers by such Disqualified Individuals of any portion of such parachute payment as exceeds (x) three (3) times such individual’s “base amount” within the meaning of Section 280G280G(b)(3) and who have of the Code less (y) one (1) dollar (collectively, the “Excess Parachute Payments”) to the extent such Excess Parachute Payments are not subsequently approved pursuant to a right to any payments and/or benefits as a result of or stockholder vote in connection accordance with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning requirements of Section 280G280G(b)(5)(B) of the Code and Treasury Regulations section 1.280G-1 thereunder (the “Waived 280G Benefits”, and each such waiver, a “280G WaiverStockholder Approval Requirements”) and (bii) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the seek stockholder approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) satisfy the 280G Stockholder Approval Requirements in respect of the Code Excess Parachute Payments payable to any such Disqualified Individual. At least two (2) Business Days prior to obtaining such waivers and seeking stockholder approval, the Company shall provide drafts of the waivers and all stockholder approval materials to Buyer for its review and comment and shall consider any such comments in good faith; provided that, no later than ten (10) Business Days prior to the Closing Date, Buyer shall provide to the Company copies of any Waived 280G Benefits; provided arrangements with or negotiated by Buyer or one of its Affiliates, or the relevant terms of such arrangements if not finalized at such time, that would or may be deemed to constitute “parachute payments” as set forth above, and Seller and the Company shall not be in breach of deemed to have breached this covenant solely as a result of the refusal of Section 6.11 with respect to any disqualified individual to waive the applicable payments and submit them arrangement that has not been timely communicated by Buyer to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver)Company. At least one day prior Prior to the Closing Date, the Company shall deliver to Parent Buyer evidence that a any vote of the Stockholder applicable Company’s stockholders was solicited in accordance with the foregoing provisions and that either (ix) the approval requisite number of the Stockholder stockholder votes was obtained obtained, or (iiy) the approval requisite number of the Stockholder stockholder votes was not obtained and no Waived 280G Benefits waived parachute payments shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the votemade.
Appears in 1 contract
Samples: Stock Purchase Agreement (New Residential Investment Corp.)
Section 280G Matters. To (i) Prior to the extent applicableClosing Date, if required to avoid the imposition of Taxes under Section 4999 of the Code or the loss of deduction under Section 280G of the Code with respect to any payment or benefit in connection with any of the transactions contemplated by this Agreement, as promptly as practicable after the execution and delivery of this Agreement, but no later than two (2) Business Days prior to the Closing Date, the Company Group Companies shall submit to the applicable direct or indirect stockholders (or shall cause its applicable Affiliates tocollectively, the “Stockholders”) solicit (ain a manner reasonably satisfactory to Purchaser) waivers from individuals who are “disqualified individuals” (within for execution and approval by such number of stockholders as is required by the meaning terms of Section 280G(b)(5)(B) of the Code a written consent in favor of a single proposal to render the parachute payment provisions of Section 280G of the Code and the Treasury Regulations thereunder (collectively, “Section 280G”) and who have a right inapplicable to any payments and/or or benefits to be provided as a result of or in connection with the transactions contemplated herein by this Agreement that might result, separately or in the aggregate, in the payment of any amount or the provision of any benefit that would reasonably not be expected to constitute “excess parachute payments” (within the meaning deductible by reason of Section 280GG or that would be subject to an excise Tax under Section 4999 of the Code (determined without regard to the exceptions contained in Section 280G(b)(4)) of the Code or any corresponding or similar provision of any state, local or foreign Law (together, the “Waived Section 280G BenefitsPayments”, and each ). Any such waiver, a “280G Waiver”) and (b) prior to stockholder approval shall be sought by the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder Group Companies in a manner that intended to comply with Sections 280G(b)(5)(A)(ii) and satisfy all applicable requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of any Waived 280G Benefits; provided that Section 1.280G-1 of such Treasury Regulations. Prior to the Closing Date, the Company shall deliver to the Purchaser (A) copies of all consents that have been executed by the Stockholders in connection with the foregoing Stockholder vote procedures and (B) a written statement specifying whether the requisite vote has or has not been achieved.
(ii) Subject to the last sentence of Section 6.8(d)(iii), the Group Companies agree that: (A) in the absence of such Stockholder approval, no Section 280G Payments shall be made to any Persons who executed and delivered to the Group Companies a Parachute Payment Wavier; and (B) promptly after execution of this Agreement, and prior to the submission to the Stockholders of the written consent described herein and any related disclosure of the Section 280G Payments, the Group Companies shall deliver to Purchaser all executed waivers the Group Companies receive, in form and substance reasonably satisfactory to Purchaser, from each Person who is reasonably expected to receive any Section 280G Payment (the “Parachute Payment Waivers”).
(iii) The form and substance of all stockholder approval documents contemplated by this Section 6.8(d), including the waivers, disclosure statement and written consent, and any mathematical analysis of the Section 280G Payments, shall be subject to the prior review and approval of Purchaser (such approval not to be unreasonably withheld, conditioned or delayed). The Group Companies shall provide such documentation and information to Purchaser for its review and approval no later than five (5) Business Days prior to soliciting waivers from the “disqualified individuals,” and the Group Companies shall incorporate all reasonable comments from Purchaser thereon. Notwithstanding the foregoing, the Group Companies shall not be in breach violation of the provisions of this covenant Section 6.8(d) solely as a result of the refusal of any disqualified individual to waive execute the applicable payments and submit them to the applicable stockholder voteParachute Payment Waiver, so long as the Company Group Companies used commercially reasonable efforts to solicit such waiver Parachute Payment Waiver (provided that the Group Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiverParachute Payment Waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote.
Appears in 1 contract
Section 280G Matters. To the extent applicablethat (a) any “disqualified individual” (as defined in Section 280G(c) of the Code) would be entitled to any payment or benefit in connection with the transactions contemplated by this Agreement and (b) such payment or benefit would constitute a “parachute payment” under Section 280G of the Code, the Company shall (or shall cause its applicable Affiliates to) solicit shall, prior to the Closing:
(a) waivers from individuals who are use its commercially reasonable efforts to obtain a binding written waiver (a “Section 280G Waiver”) by such disqualified individualsindividual of any such portion of such parachute payment as exceeds 2.99 times such disqualified individual’s “base amount” (within the meaning of Section 280G280G(b)(3) and who have of the Code) to the extent such excess is not subsequently approved pursuant to a right to any payments and/or benefits as a result of or Equityholders vote in connection accordance with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning requirements of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any Waived (such excess portion, the “Section 280G BenefitsAmount”);
(b) provide to the Equityholders such disclosure as is required under Section 280G(b)(5)(B)(ii) of the Code; and
(c) hold a vote of the Equityholders in a manner that is intended to satisfy the requirements of Section 280G(b)(5)(B) of the Code. No later than five (5) Business Days prior to the Closing, and prior to soliciting executed Section 280G Waivers and Equityholders approval as provided that above, the Company shall not be in breach of this covenant solely as a result provide drafts of the refusal of any disqualified individual Equityholders approval materials (including Section 280G Waivers, disclosure and consent documentation) to waive the applicable payments Parent and submit them to the applicable stockholder vote, so long as Parent’s advisors for their reasonable review and comment (which such comments shall be considered in good faith by the Company used commercially reasonable efforts to solicit and its advisors for incorporation into such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiverdocumentation). At least one day prior Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder Equityholders of the Company was solicited in accordance as provided above with the foregoing provisions respect to each disqualified individual who executes a Section 280G Waiver and that either (ix) the requisite Equityholder approval of the Stockholder was obtained with respect to each disqualified individual who executes a Section 280G Waiver, or (iiy) the requisite Equityholder approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding and, as a consequence, the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may Amounts shall not be paid or granted in connection with the transactions contemplated by this Agreement that could constitute to any disqualified individual who executes a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteWaiver.
Appears in 1 contract
Samples: Merger Agreement (Cable One, Inc.)
Section 280G Matters. To 5.5.1 As soon as practicable after the extent applicabledate hereof, the Company shall (or shall cause its applicable Affiliates toi) solicit (a) waivers obtain an executed waiver from individuals each Person who are is a “disqualified individualsindividual” (within the meaning of Section 280G) G and who might not otherwise receive or have a the right to any payments and/or benefits as receive a result Section 280G Payment unless approval of or in connection such Section 280G Payment by the shareholders of the Company is obtained (such waiver, the “Section 280G Waiver”); (ii) provide the shareholders of the Company with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (adequate disclosure, within the meaning of Section 280G280G(b)(5)(B)(ii) (of the “Waived Code, of all material facts concerning the Section 280G Benefits”, Payments; and each (iii) obtain approval of such waiver, a “Section 280G Waiver”Payments, in a manner which satisfies the requirements of Section 280G.
5.5.2 At least ten (10) and (b) days prior to the Closing Date and at least one (1) calendar day following the receipt of the prior to soliciting executed Section 280G WaiversWaivers and shareholder approval as provided in Section 5.5.1 above, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result provide to Buyer drafts of the refusal of shareholder approval materials, and Section 280G Waivers and any disqualified individual to waive the applicable payments and submit them other documents related to the applicable stockholder voteSection 280G Payments requested by Buyer for its review and approval, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies which approval shall not be required to provide any additional value to such disqualified individual in order to receive such waiver)unreasonably withheld. At least one day two (2) days prior to the Closing Date, the Company shall deliver to Parent Buyer evidence that a vote of the Stockholder shareholders of the Company was solicited in accordance with respect to each person who executes a Section 280G Waiver (the foregoing provisions “Section 280G Shareholder Vote”) and that either (i) the requisite shareholder approval of the Stockholder was obtained with respect to each person who executes a Section 280G Waiver, or (ii) the requisite shareholder approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding and, as a consequence, the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of Payments shall not be made to 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 person who executes a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteWaiver.
Appears in 1 contract
Section 280G Matters. To No later than five Business Days after the extent applicabledate hereof, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals will deliver to the Purchaser reasonably detailed information setting forth all persons who are may be “disqualified individuals” as described below and who may be receiving payments or benefits in connection with the Merger (under this Agreement or any other Contract, plan or arrangement with any Acquired Company or otherwise, including severance payments, change of control payments and acceleration of vesting or benefits under options or restricted stock), together with a worksheet or memorandum reasonably acceptable to the Purchaser demonstrating the extent (if any) to which such payments, vesting or benefits could constitute “excess parachute payments” within the meaning of Section 280G) and who have G of the Code. If for any reason it appears to the Purchaser that a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would disqualified individual reasonably could be expected to constitute “receive an excess parachute payments” (within payment, then the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach balance of this covenant solely as a result of Section 6.13 will apply, in addition to any other rights and remedies the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver)Purchaser may have. At least one day prior Prior to the Closing Date, the Company shall deliver will use its commercially reasonable efforts to Parent evidence that submit to a Stockholder vote or written consent approving the right of any “disqualified individual” (as defined in Section 280G(c) of the Stockholder was solicited in accordance with the foregoing provisions Code) to receive or retain any and all payments that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall could be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the deemed “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of parachute payments” under Section 280G of the Code, in a manner that complies with the stockholder approval requirements under Section 280G(b)(5)(B) of any payments or benefits granted or contemplated thereinthe Code and the regulations thereunder (the “Stockholder Approval Requirements”), which may including requirements that such disqualified individual waive in advance the right to such payment if the requisite stockholder approval is not obtained, and each such payment will be paid or granted separately approved within the meaning of such regulations. Prior to the delivery to the Stockholders of documents in connection with the transactions Stockholder approval contemplated by under this Agreement that could constitute a “parachute payment” under Section 280G; provided that, in any event6.13, the Company’s failure Company will provide the Purchaser and its counsel with a reasonable opportunity to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior comment on all documents to seeking be delivered to the 280G Waivers and soliciting Stockholders in connection with the vote.
Appears in 1 contract
Samples: Merger Agreement (Radisys Corp)
Section 280G Matters. To Prior to the extent applicableClosing Date, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers Group will seek and use reasonable best efforts to obtain, from individuals each individual who are may be a “disqualified individualsindividual” (within the meaning of Section 280G280G(c) of the Code and the regulations thereunder) and who have a right to any could receive or retain payments and/or or benefits as a result of or in connection with the transactions Transactions contemplated herein that would reasonably be expected to constitute by this Agreement that, separately or in the aggregate, could result in such individual’s receipt of “excess parachute payments” (within the meaning of Section 280G) G of the Code), a waiver of such individual’s right to receive or retain that portion of the payments or benefits that would result in such individual’s receipt of “parachute payments” (the “Waived 280G Benefits”, and each such waiver, a “280G WaiverPayments”) and (b) prior to if the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the requisite stockholder approval of the Stockholder in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided that the is not obtained. The Company shall not be in breach of this covenant solely as a result Group then will solicit stockholder approval of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver Waived Payments. No later than ten (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to 10) Business Days before the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, Acquiror or its counsel drafts of the consent, waiver, disclosure statement and calculations for Parentnecessary to effectuate the approval process and shall incorporate all of Acquiror’s review and commentreasonable comments. The Prior to the Closing Date, the Company shall incorporate deliver to Acquiror notification and evidence reasonably satisfactory to Acquiror that (a) a vote was solicited in conformance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to the Waived Payments that were subject to the stockholder vote, or (b) such stockholder approval was not obtained, and, as a consequence, the Waived Payments shall not be made or provided or retained to the extent they would cause any reasonable comments made by Parent prior amounts to seeking the constitute “excess parachute payments” pursuant to Section 280G Waivers and soliciting of the voteCode.
Appears in 1 contract
Samples: Merger Agreement (Forest Road Acquisition Corp. II)
Section 280G Matters. To Prior to the extent applicableClosing, the Company shall (or shall cause its applicable Affiliates to) solicit (aand shall use reasonable best efforts to obtain) waivers from individuals each Person who are “disqualified individuals” (within the meaning of Section 280G) and who have has a right to any payments and/or benefits from the Company as a result of or in connection with the transactions contemplated herein that would reasonably be expected deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code), a waiver of such Person’s 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 from the Company applicable to such Person shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G) (G of the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior Code). Prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G WaiversClosing, the approval of the Stockholder Company will hold a stockholder vote in a manner intended to comply accordance with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder (“Requisite Section 280G Approval”), seeking the approval of any Waived 280G Benefits; provided that . The Company shall provide Buyer with drafts of all documentation and calculations reasonably requested by Buyer reasonably promptly following Xxxxx’s written request as such documentation and calculations are being prepared. At least three (3) days prior to obtaining such waivers and seeking Requisite Section 280G Approval, the Company shall not be in breach of this covenant solely as a result provide drafts of the refusal waivers and all stockholder approval materials to Buyer for its review and comment and incorporate any comments of any disqualified individual to waive the Buyer consistent with applicable payments and submit them Law. Prior to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing DateClosing, the Company shall deliver to Parent Buyer evidence that a vote of the Stockholder Company’s stockholders was solicited in accordance with the foregoing provisions of this Section 5.3 and that either (ia) the approval requisite number of the Stockholder stockholder votes was obtained (the “280G Approval”), or (iib) that the approval of the Stockholder 280G Approval was not obtained and no Waived 280G Benefits shall be paid or providedpaid. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement plan is entered into by Parent the Buyer, or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Buyer Arrangements”), Parent Buyer shall provide a copy of such Parent Arrangement contract, agreement or plan to the Company at least ten seven (107) calendar days Business Days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteCode.
Appears in 1 contract
Section 280G Matters. To If required to avoid the extent applicableimposition of Taxes under Section 4999 of the Code or the loss of deduction under Section 280G of the Code with respect to any payments or benefits in connection with the transactions contemplated by this Agreement, the Company shall (or shall cause its applicable Affiliates to) solicit will (a) waivers prior to soliciting the Stockholder Approval (as defined below), solicit from individuals who are each “disqualified individualsindividual” (as defined in Section 280G(c) of the Code) who may receive any payments or benefits that could reasonably constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280GG Benefits” and, each such waiver, a “280G Waiver”) and who have a right to any so that all remaining payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably benefits, if any, shall not be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (G of the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”Code) and (b) prior solicit with respect to the Closing Date and at least one (1) calendar day following the receipt of the each individual who provides a duly executed 280G WaiversWaiver, the stockholder approval of the Stockholder (in a manner intended to comply with Sections satisfying the requirements of Section 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder, in particular, Treasury Regulation Section 1.280G-1, Q/A-7) (the “Stockholder Approval”) of the rights of any such “disqualified individual” to receive the Waived 280G Benefits; provided that . As promptly as practicable prior to soliciting 280G Waivers from the “disqualified individuals,” the Company shall not be in breach provide drafts of this covenant solely as a result such waivers and disclosure materials to Parent for its review and comment. If any of the refusal of any disqualified individual Waived 280G Benefits fail to waive be approved by the applicable payments and submit them to the applicable stockholder voteStockholders as contemplated above, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies Waived 280G Benefits shall not be required to provide any additional value to such disqualified individual in order to receive such waiver)made or provided. At least one day prior Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder Approval was solicited in accordance with the foregoing provisions of this Section 6.10 and that either (i) the approval requisite number of votes of the Stockholder Stockholders of the Company was obtained with respect to any Waived 280G Benefits (the “280G Approval”) or (ii) the approval of the Stockholder 280G Approval was not obtained and no obtained, and, as a consequence, any Waived 280G Benefits shall not be paid made or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote.
Appears in 1 contract
Samples: Merger Agreement (Acuren Corp)
Section 280G Matters. To the extent applicable, the Company STX shall (or shall cause its applicable Affiliates to) solicit (a) waivers use commercially reasonable efforts to obtain, no less than five (5) Business Days prior to the Closing, a waiver from individuals who are each “disqualified individualsindividual” (within the meaning of Section 280GG of the Code and the regulations thereunder) that shall provide that, if the requisite stockholder approval under Section 280G(b)(5)(B) of the Code and who have a right to any the regulations thereunder is not obtained, no payments and/or or benefits as a result of that would separately or in connection with the transactions contemplated herein that would reasonably be expected to aggregate constitute “excess parachute payments” (within the meaning of Section 280GG of the Code and the regulations thereunder) (with respect to such disqualified individual in the “Waived absence of such stockholder approval shall be payable to or retained by such disqualified individual to the extent such excess parachute payments would not be deductible by reason of the application of Section 280G Benefits”, and each of the Code or would result in the imposition of excise Taxes under Section 4999 of the Code upon such waiver, a “280G Waiver”) disqualified individual; and (b) deliver, no less than four (4) Business Days prior to the Closing Date and at least one (1) calendar day following Closing, to the receipt stockholders of the 280G Waivers, the approval of the Stockholder STX a disclosure statement in a manner intended to comply with Sections 280G(b)(5)(A)(ii) and form which satisfies the disclosure obligations under Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided and the regulations thereunder, and which solicits and recommends that the Company shall not be shareholders vote in breach of this covenant solely as a result favor of the refusal transactions disclosed therein through a vote meeting the requirements of any disqualified individual Section 280G(b)(5)(B) of the Code and the regulations thereunder, and which provides for a voting process that is intended to waive be completed no later than the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent STX shall provide Eros and its Representatives with a copy of the form of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date waiver and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated thereinsuch disclosure statement, which may be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a all “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will calculations and all other relevant documents for its review and approval (which approval shall not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least be unreasonably withheld) no less than five (5) calendar days Business Days prior to seeking the 280G Waiversdelivery to each such disqualified individual and to stockholders of STX, drafts of the consentrespectively, waiver, disclosure statement and calculations for Parent’s review and comment. The Company STX shall incorporate any consider in good faith all reasonable comments made timely provided by Parent prior to seeking the 280G Waivers and soliciting the voteSTX or its Representatives.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior Prior to the Closing Date, the Company shall deliver submit to Parent evidence a stockholder vote, in a manner that a vote satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Stockholder was solicited Code and regulations promulgated thereunder, the right of any “disqualified individual” (as defined in accordance with the foregoing provisions and that either (iSection 280G(c) the approval of the Stockholder was obtained Code) to receive any and all payments (or (iiother benefits) contingent on the approval consummation of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before (within the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes meaning of Section 280G 280G(b)(2)(A)(i) of the Code) of any payments or benefits granted or contemplated therein, which may to the extent necessary so that no payment received by such “disqualified individual” shall be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G; provided that280G(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, in and the Company shall use commercially reasonable efforts to obtain any eventrequired waivers or consents from the disqualified individual prior to the vote. In addition, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide adequate disclosure to Parent at least five (5) calendar days prior the Company Stockholders of all material facts concerning all payments to seeking the any such disqualified individual that, but for such vote, could be deemed “parachute payments” under Section 280G Waivers, drafts of the consent, waiver, disclosure statement Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and calculations for Parent’s the regulations promulgated thereunder. The Buyer and its counsel shall be given the right to review and commentprovide reasonable comments on all documents required to be delivered to the Company Stockholders in connection with such vote and any required disqualified individual waivers or consents within a reasonable period of time before taking such actions, and the Company shall reflect all reasonable comments of the Buyer thereon. The Buyer and its counsel shall be provided copies of all documents executed by the Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers Stockholders and soliciting disqualified individuals in connection with the vote.
Appears in 1 contract
Section 280G Matters. To Prior to the extent applicableClosing, the Company shall use reasonable best efforts to obtain (or shall cause its applicable Affiliates toi) solicit (a) waivers a waiver from individuals who are each “disqualified individualsindividual” (within the meaning of Section 280GG of the Code) and who have has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G of the Code (hereafter, “Section 280G”)) and as to which such individual waives his or her rights to some or all of such payments and/or benefits (the “Waived 280G Benefits”) applicable to such individual; provided, and each however, that such waiver, a “280G Waiver”waiver shall not include any payments or benefits that may be made by Parent unless at least seven (7) and (b) Business Days prior to the Closing Date Date, Parent provides a detailed list and at least one copy of any contract, agreement, or plan that Parent has agreed to provide or enter into, whether before or after the Closing, with respect to any such “disqualified individual” in connection with the transactions contemplated hereby (1the “Parent Agreements”), along with a written description, satisfying the adequate disclosure requirements of Section 280G(b)(5)(B)(ii) calendar day of the Code, of any such Parent Agreement and the amount of the related “parachute payments”, and (ii) promptly following the receipt execution of such waiver (if any such waivers are executed), and in all events prior to the 280G WaiversClosing, the approval of the Stockholder requisite Stockholders who are entitled to vote in a manner intended to comply that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code of any such Waived 280G Benefits; provided that . No later than two (2) Business Days prior to soliciting such waivers, the Company shall not be in breach of this covenant solely as a result provide to Parent the parachute payment calculations prepared by the Company and/or its advisors and the drafts of the refusal of any disqualified individual to waive the applicable payments waivers and submit them stockholder approval materials for Parent’s review and approval. Prior to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing DateClosing, the Company shall deliver to Parent evidence that a vote of the Stockholder requisite Stockholders who are entitled to vote was solicited in accordance with the foregoing provisions of this Section 6.10 and that either (i) the approval requisite number of the Stockholder votes was obtained or with respect to the Waived 280G Benefits (iithe “280G Approval”) and, as a consequence, the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, planmade, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10ii) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G WaiversApproval was not obtained, drafts of and, as a consequence, the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the Waived 280G Waivers and soliciting the voteBenefits shall not be made or provided.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the Company shall Not less than five (or shall cause its applicable Affiliates to5) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day Business Days prior to the Closing Date, the Company shall deliver submit to Parent evidence a stockholder vote, in a manner that a vote satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Stockholder was solicited Code and the Treasury Regulations promulgated thereunder, the right of any “disqualified individual” (as defined in accordance with the foregoing provisions and that either (iSection 280G(c) the approval of the Stockholder was obtained Code) to receive any and all payments (or (iiother benefits) contingent on the approval consummation of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before (within the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes meaning of Section 280G 280G(b)(2)(A)(i) of the Code) of any payments or benefits granted or contemplated therein, which may to the extent necessary so that no payment received by such “disqualified individual” shall be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a “parachute payment” under Section 280G; provided that280G(b) of the Code (determined without regard to Section 280G(b)(4) of the Code). Such vote, in if obtained, shall establish each disqualified individual’s right to the payment or other compensation, and the Company shall exercise commercially reasonable efforts to obtain any eventrequired waivers or consents from the disqualified individual prior to the vote. In addition, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide adequate disclosure to Parent at Company stockholders that hold voting Company Common Stock of all material facts concerning all payments to any such disqualified individual that, but for such vote, could be deemed “parachute payments” under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and Treasury Regulations promulgated thereunder. At least five (5) calendar days Business Days prior to seeking the 280G Waiversvote, drafts of Acquiror and its counsel shall be given the consent, waiver, disclosure statement and calculations for Parent’s right to review and comment. The comment on all documents required to be delivered to the Stockholders in connection with such vote and any required disqualified individual waivers or consents, and the Company shall incorporate any reasonable consider in good faith all comments made of Acquiror thereon. Acquiror and its counsel shall be provided copies of all documents executed by Parent prior to seeking the 280G Waivers stockholders and soliciting disqualified individuals in connection with the vote.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
Section 280G Matters. To the extent applicable, the The Company shall (seek the necessary approval from Stockholders of any payments or shall cause its applicable Affiliates to) solicit benefits either (a) waivers from individuals who are “disqualified individuals” under any Plan or other agreement, in each case, entered into by the Company or any of its Subsidiaries prior to the date of this Agreement or (within the meaning of Section 280Gb) and who have a right made pursuant to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”this Agreement, and each such waiver, a “280G Waiver”excluding from both (a) and (b) prior hereof, for the avoidance of doubt, any payments made pursuant to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is plan entered into by Parent the Buyer or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by (other than this Agreement before and payments or benefits made pursuant to any contract, agreement, or plan entered by the Closing Date (Buyer or its Affiliates as long as such contract, agreement, or plan is disclosed, in writing, by the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement Buyer to the Company at least ten (10) calendar business days before prior to the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated thereinDate), which may would be paid or granted in connection with the transactions contemplated by this Agreement that could constitute a an “excess parachute payment” under Section 280GG of the Code as a result of the transactions contemplated by this Agreement; provided that, in that any eventcommunications to the Stockholders regarding such approval (including the computations of parachute payments, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach identification of the covenants set forth in this Section 6.9 if “disqualified individuals” who are potential recipients of parachute payments, and the waivers of payments and/or benefits executed by the affected individuals) shall be made available to the Buyer and the Buyer shall have the right to review and approve (which approval shall not be unreasonably conditioned, withheld or delayed) such failure is due communications before they are distributed to Parent’s breach of this Section 6.9the Stockholders. The Company shall provide deliver to Parent at least five (5) calendar days the Buyer prior to seeking the Closing reasonable evidence either (x) that the Stockholder approval was solicited in conformity with Section 280G of the Code and the regulations promulgated thereunder and the necessary Stockholder approval was obtained with respect to any payments and/or benefits that were subject to the Stockholder vote (the “280G Approval”), or (y) that the 280G WaiversApproval was not obtained and, drafts as a consequence, that such “excess parachute payments” shall not be made or provided, as authorized under the waivers of those payments and/or benefits which were executed by all of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the voteaffected individuals.
Appears in 1 contract
Section 280G Matters. To The Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts (which shall in no event require payment of additional consideration to any Person), as soon as practicable after the date of this Agreement (but in no event later than the third (3rd) Business Day immediately prior to the Closing Date), to obtain from each Person to whom any payment and/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 and/or benefit (such waived portion, the “Waived Benefit”), so that the remaining payment and/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 or subject to an excise tax under Section 4999 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 Shareholders 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 Shareholder approval is not obtained, such Waived Benefit shall not be made and such Person shall have no right or entitlement with respect thereto. As soon as practicable thereafter, but in any event prior to the Closing Date, to the extent applicablesuch waivers are obtained, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the seek Shareholder approval of the Stockholder in a manner intended to comply that complies with Sections 280G(b)(5)(A)(ii) and Section 280G(b)(5)(B) of the Code of any Waived 280G Benefits; provided all such payments and/or benefits that have been conditioned on the Company shall not be in breach receipt of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver)approval. At least one day three (3) Business Days prior to obtaining such waivers and seeking approval from the Shareholders, the determination of which payments may be deemed to constitute parachute payments, the form of each such waiver, and the disclosure and other circumstances of any such Shareholder approval shall be provided to Buyer for Buyer’s review and comment, and the Company (and its advisors) shall reasonably consider and incorporate such comments. Prior to the Closing Date, the Company shall deliver to Parent Buyer notification and evidence reasonably satisfactory to Buyer that (i) a vote of the Stockholder was solicited in accordance conformance with the foregoing provisions and that either (iSection 280G(b)(5) the approval of the Stockholder Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any waived payments or benefits that were subject to the stockholder vote, or (ii) the that such stockholder approval of the Stockholder was not obtained and no Waived 280G Benefits and, as a consequence, that such waived payments or benefits shall not be paid made or provided. Notwithstanding the foregoing, provided to the extent they would cause any amounts to constitute “excess parachute payments” pursuant to Section 280G of the Code. To the extent that any contract, agreement, planBuyer or its Affiliates wish to enter into, or arrangement is entered into by Parent cause the Company or any of its Affiliates and a disqualified individual in connection the Subsidiary to enter into, additional arrangements with the transactions contemplated by this Agreement before Company’s “disqualified individuals” (as defined in Section 280G of the Closing Date Code) with respect to services to be provided prior to or following the Merger (the “Parent Buyer 505026976.1 Arrangements”), Parent such arrangements shall provide a copy of such Parent Arrangement be disclosed to the Company at least ten (10) calendar days before the Closing Date and Buyer shall cooperate with the Company in good faith in order provide sufficient information necessary to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted pursuant to or contemplated thereinby such arrangements, which may be paid or granted in connection with each case, at least ten (10) Business Days prior to the transactions contemplated by this Agreement that could constitute a “parachute payment” under Closing Date. In the event Buyer does not timely disclose, and provide the information necessary to determine the value (for purposes of Section 280G; provided that, in any eventG Code) of, the Company’s Buyer Arrangements, the Company shall not include the Buyer Arrangements in the written waiver and shareholder voting materials described herein and such failure to include the Parent Buyer Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote6.12.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the The Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers no later than five (5) Business Days prior to the Closing Date, solicit from individuals who are each “disqualified individualsindividual” with respect to the Company and Company Subsidiaries (within the meaning of Section 280G(c) of the Code) who could otherwise receive any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280GG Benefits”) and who have a right so that all remaining payments or benefits, if any, shall not be deemed to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would reasonably be expected to constitute “excess parachute payments” (within the meaning of Section 280G) (G of the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”Code) and (b) prior to the Closing Date and at least one no later than three (13) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day Business Days prior to the Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a shareholder vote (along with adequate disclosure satisfying the requirements of Section 280G(b)(5)(B)(ii) of the Code and any regulations promulgated thereunder) the right of any such “disqualified individual” to receive the Waived 280G Benefits. Prior to soliciting such waivers and approval materials, the Company shall provide drafts of such waivers and approval materials, including calculations related to such materials, to Purchaser for its review and comment no later than three (3) Business Days prior to soliciting such waivers and soliciting such approval, and the Company shall consider any comments provided by Purchaser in good faith. If any of the Waived 280G Benefits fail to be approved in accordance with the requirements of Section 280G(b)(5)(B) as contemplated above, such Waived 280G Benefits shall not be made or provided. Prior to the Closing, Seller shall deliver to Parent Purchaser evidence reasonably acceptable to Purchaser that a vote of the Stockholder shareholders of the Company was solicited in accordance with the foregoing provisions of this Section 7.12 and that either (i) the approval requisite number of votes of the Stockholder shareholders of the Company was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or (ii) the approval of the Stockholder 280G Approval was not obtained and no obtained, and, as a consequence, the Waived 280G Benefits shall not be paid made or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Arrangements”), Parent shall provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking the 280G Waivers, drafts of the consent, waiver, disclosure statement and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the Company shall (or shall cause its applicable Affiliates to) solicit (a) waivers from individuals If any Person who are is a “disqualified individualsindividual” (within the meaning of Section 280GG of the Code and the Department of Treasury regulations promulgated thereunder) and who have a right with respect to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that Acquired Companies would reasonably be expected to receive any payment(s) or benefit(s) that could constitute “excess parachute payments” (within the meaning of payments under Section 280G) (the “Waived 280G Benefits”, and each such waiver, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Stockholder was solicited in accordance with the foregoing provisions and that either (i) the approval of the Stockholder was obtained or (ii) the approval of the Stockholder was not obtained and no Waived 280G Benefits shall be paid or provided. Notwithstanding the foregoing, to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before as determined without taking into account any contracts or arrangements (including any equity or equity-based contracts or arrangements) entered into between Purchaser or one of its Affiliates and an employee or other service provider of any of the Acquired Companies unless any such contracts or arrangements were disclosed to the Acquired Companies at least 10 Business Days prior to the Closing Date Date, then: (a) the Acquired Companies will take Commercially Reasonable Efforts to obtain and deliver to Purchaser each of the waivers received from such “disqualified individual(s)” regarding the parachute payments (the “Parent ArrangementsParachute Payment Waivers”) as soon as practicable after the date hereof (but in no event later than the day immediately prior to the Closing Date); and (b) as soon as practicable following the delivery of the Parachute Payment Waivers (if any) to Purchaser (but in any event prior to Closing), the Acquired Companies will prepare and distribute to its or their (as appropriate) shareholders a disclosure statement describing the potential parachute payments and benefits that may be received by such disqualified individual(s) and will submit such statements to its shareholders for 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 requisite number of the shareholders, such payments and benefits will not be deemed to be “parachute payments” under Section 280G of the Code (the foregoing actions, a “280G Vote”). Prior to Closing, if a 280G Vote is required, the Acquired Companies will deliver to Purchaser evidence (i) that the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the shareholder vote (the “Section 280G Approval”), Parent shall provide or (ii) that the Section 280G Approval was not obtained and as a copy of such Parent Arrangement consequence, pursuant to the Parachute Payment Waiver, such “parachute payments” will not be made or provided. Notwithstanding the foregoing provisions of this Section 6.06, the Acquired Companies will have no obligation to compel any Person to execute a Parachute Payment Waiver and in no event will any Seller or any Acquired Company be considered in breach of this Section 6.06 if any such Person fails to execute a Parachute Payment Waiver or if the Section 280G Approval is not obtained. This Section 6.06 will not apply to (and compliance with this Section 6.06 will be determined as if there had not been entered into or implemented) any contracts or arrangements with Purchaser or any of its Affiliates unless such contracts or arrangements are provided to the Acquired Companies at least ten two (102) calendar days before Business Days prior to the Closing Date and shall Date. Purchaser will cooperate with the Company Acquired Companies in good faith in order to calculate or determine the value (for the purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid in any such contracts or granted in connection with the transactions contemplated by this Agreement arrangements that could constitute a “parachute payment” under Section 280G; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach G of the covenants set forth in this Section 6.9 if such failure is due Code. At least one (1) Business Days before distributing any Parachute Payment Waivers and any materials to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least five (5) calendar days prior to seeking shareholders for the 280G WaiversVote, drafts the Acquired Companies shall deliver to Purchaser copies of all calculations and the consent, waiver, disclosure statement and calculations materials to be distributed to disqualified individuals for ParentPurchaser’s review and reasonable comment. The Company shall incorporate any reasonable comments made by Parent prior to seeking the 280G Waivers and soliciting the vote.
Appears in 1 contract
Section 280G Matters. To the extent applicable, the The Company shall (use reasonable best efforts to seek, prior to the initiation of the stockholder approval described in this Section 5.15, from each Person to whom any payment or shall cause its applicable Affiliates to) solicit (a) waivers from individuals who are “disqualified individuals” (within the meaning of Section 280G) and who have a right benefit is required or proposed to any payments and/or benefits as a result of or in connection with the transactions contemplated herein be made that would reasonably be expected to could constitute “excess parachute payments” under Section 280G(b)(2) of the Code and the Treasury Regulations promulgated thereunder (within the meaning of “Section 280G) G Payments”), a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived 280G Benefits”), to the extent necessary so that all remaining payments and benefits applicable to such Person shall not be deemed a parachute payment, and each such waiveraccepting in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the stockholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations issued thereunder. Following the waiver procedure, a “280G Waiver”) and (b) prior to the Closing Date and at least one (1) calendar day following the receipt of the 280G Waivers, the approval of the Stockholder 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; provided that the Company shall not be in breach of this covenant solely as a result of the refusal of any disqualified individual to waive the applicable payments and submit them to the applicable stockholder vote, so long as the Company used commercially reasonable efforts to solicit such waiver (provided that the Companies shall not be required to provide any additional value to such disqualified individual in order to receive such waiver). At least one day prior to the Closing Date, the Company shall deliver to Parent evidence that a vote solicit the approval by such number of stockholders of the Stockholder was solicited Company in accordance a manner that complies with the foregoing provisions and that either (iterms of Section 280G(b)(5)(B) the approval of the Stockholder was obtained or (ii) Code and the approval Treasury Regulations thereunder, of the Stockholder was not obtained right of each Person to receive or retain, as applicable, such Person’s Waived Benefits, provided that in no event shall this Section 5.15 be construed to require the Company to compel any Person to waive any existing rights under any Contract or agreement that such Person has with the Company or any other Person, and in no event shall the Company be deemed in breach of this Section 5.15 if any such Person refuses to waive any such rights or if the equityholders fail to approve any Waived Benefits. To the extent Buyer enters into (or enters into a legally binding promise to provide) any arrangements with any Person that could constitute a Section 280G Benefits shall be paid or provided. Notwithstanding the foregoing, Payment prior to the extent that any contract, agreement, plan, or arrangement is entered into by Parent or any of its Affiliates and a disqualified individual in connection with the transactions contemplated by this Agreement before the Closing Date (the “Parent Buyer Arrangements”), Parent shall Buyer will provide a copy of such Parent Arrangement to the Company at least ten (10) calendar days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for the 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; provided that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein will not result in a breach of the covenants set forth in this Section 6.9 if such failure is due to Parent’s breach of this Section 6.9. The Company shall provide to Parent at least no less than five (5) calendar days prior to seeking the 280G WaiversClosing Date a copy or written description of any Buyer Arrangements and the estimated value of such Buyer Arrangements, drafts of and such Buyer Arrangements shall be included in the consent, waiver, disclosure statement Waived Benefits and calculations for Parent’s review and comment. The Company shall incorporate any reasonable comments made by Parent prior related approval materials so long as such Buyer Arrangements are timely provided pursuant to seeking the 280G Waivers and soliciting the votethis Section 5.15.
Appears in 1 contract
Samples: Merger Agreement (Charles River Laboratories International, Inc.)
